COPYRIGHT ISSUES IN ELECTRONIC BACK ISSUE REPUBLICATION

Under Title 17, sec. 201(c) of the United States Code, copyright in a collective work, such as a journal, is distinct from copyright in individual articles within the collective work, which remain with the authors absent an express transfer. The publisher of a collective work has the right to republish an individual article only as part of a revision to the collective work or any later collective work in the same series (e.g., a future issue of the same journal).

The advent of electronic publishing has created a new set of dilemmas for publishers. Two recent cases have cast doubt on the ability to extend the right of republication into electronic form. In New York Times v. Tasini, the U.S. Supreme Court held that a CD-ROM compilation of New York Times articles was an infringement of the copyrights in those articles because it was not a revision of a collective work but merely an archive of individual articles. In Greenberg v. National Geographic, the 11th Circuit held that a CD-ROM compilation of back issues of National Geographic was an infringement on the rights of one of NG’s photographers because of an introductory sequence using a NG cover. Neither case addressed the question of whether a pure translation of a printed collective work into electronic form violates the copyrights on individual components. The author is not aware of any federal case that has answered this question. The Tasini case did make clear that electronic publication rights are distinct from print rights; an agreement to allow print publication does not contain an implied right to electronic publication.

For publishers who have been in existence more than a few decades, another issue arises. Today, all works enjoy copyright protection from the moment of creation, regardless of copyright notice or copyright registration. However, in earlier years, copyright was governed by a highly formalistic body of rules. Works that were published without a proper copyright notice or that were not registered with the Copyright Office could fall into the public domain upon publication. Before 1978, copyright was considered indivisible, that is, a transfer was all or nothing. If an author submitted an article as part of a collective work, but did not transfer copyright, the publisher’s failure to print the article with copyright notice in the author’s name could place the work in the public domain upon publication.