Sunday, October 15, 2006

Canada's Tasini

At a Copyright Society of the USA annual meeting many years ago, there were two Canadians in attendance, a fact that inexplicably led the speaker to announce that representatives from both parts of Canada were present. I almost raised my hand and asked, "Do you mean the U.S. and French?" but as the son of a Canuck, I remained silent. English speaking Canadians are of course a rich source of comedians, who then move to the United States (see this link to "Well-Known People Who Happen to be Canadian") and there is the Toronto sensation Naked News, which is how Rupert Murdoch would like Fox to be if he could get away with it (perhaps it would then be called "Foxy News"). My interest is purer, though, analyzing how U.S.-Canadian relations play out in copyright cases. In the most recent of such cases, decided October 12th, Robertson v. Thomson Corp., the Canadian Supreme Court adopted the approach of our Supreme Court's Tasini v. New York Times (533 U.S. 483) approach, but only by a 5-4 margin.

17 U.S. Section 201(c) was the focal point of Tasini, in which the New York Times, without permission, authorized the inclusion of freelance authors’ separately owned contributions into different collective works, owned by third parties, e.g., NEXIS. This activity is not covered by Section 201(c). The Section 201(c) privileges cover only "that particular collective work" and "any revision of that collective work." The second "that" refers back to "that particular collective work," i.e., the original collective work in which freelancers’ separate contributions were first published.

Since the Times without permission authorized inclusion of the freelance authors’ works in a collective work which was not that collective work, but which was instead a third party’s different collective work, it exceeded their Section 201(c) privilege. As Congress noted, "the publisher [can] not revise the contribution itself or include it in a new anthology or an entirely different magazine or other collective work."H.R. REP. No. 1476, 94th Cong. 122-123 (1976).

The Copyright Office also noted:

Under [the Section 201(c)] presumption, . . . an encyclopedia publisher would be entitled to reprint an article in a revised edition of his encyclopedia, and a magazine publisher would be entitled to reprint a story in a later issue of the same periodical. However, the privileges under the presumption are not intended to permit revisions in the contribution itself or to allow inclusion of the contribution in anthologies or other entirely different collective works.
Copyright Law Revision Part 6: Supplementary Report Of The Register Of Copyrights On The General Revision Of The U.S. Copyright Law: 1965 Revision Bill (1965)

There is no doubt that NEXIS, the GPO, and other third-party collective works are "entirely different collective works" from "that particular collective work," i.e., the issue of the New York Times in which the contribution originally appeared. NEXIS preexisted, for example, the April 15, 2003, issue of the New York Times and contains millions of articles from other periodicals. NEXIS can in no sense be considered either that particular collective or any revision of that work. NEXIS is instead an entirely different collective work to whom the Section 201(c) privilege does not extend.

One is hard-pressed to think of how Congress could have made its intent more emphatic. If Congress had wished publishers to be able to include freelance authors’ works in third parties’ collective works, the limiting word "that" (coming on the heels, moreover, of the section’s reference to "that particular collective work") would have been deleted (as would the legislative history that expressly prohibits inclusion in new anthologies and "entirely different collective works"). Congress thus made it abundantly, emphatically clear that the privileges provided in Section 201(c) cover uses only of the original collective work (and of any later collective works in the same series).

And now for the Canadians. There is no corollary to Section 201(c) in Canadian law, and so the majority got to its result by a different route, that of distinguishing between rights that inure as a result of ownership of the collective work and rights that inure as a result of ownership of the individual contributions contained therein. But remarkably, the majority managed to fit its analysis into the one I gave above for how to construe what "that" collective work means in the specialized circumstance of Section 201(c). The majority got there through the concept of "decontextualization," meaning that third party databases are not a reproduction of the collective work and, according, the collective work owner does not have a right to reproduce the individual articles in a decontextualized way (other than a CD-ROM version which was found to be sufficient "contextualized").

The dissent focused quite a bit on the adverse consequences that flowed from Tasini, principally the subsequent removal of articles from the NY Times's database. But that result only flowed from the Times' decision not to pay for uses, not because freelancers insisted on being excluded from the database. The Times took care of the problem prospectively by requiring assignment of e-rights (and I believe for no extra payment) as a condition of being a stringer. Tasini is at best a default for those rare cases where publishers forget to take freelancers to the cleaners; it is not an inalienable right, and thus it is just as hard to get worked up over the Canadian dissent's parade of horribles as it was over the New York Times'. As Evita said,"Don't Cry for Me Argentina." (Here is a link to YouTube with a Madonna music video of the song along with other videos of the same ilk).

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