We often discuss the limited utility of “exact replica” digital editions of books, magazines and other content, but that same level of pure duplication could prove useful to publishers who reprint back issues in digital archive products. Law.com says two recent rulings allow publishers to create and sell exact digital archives without paying freelance photographers and illustrators additional royalties:
A publisher, according to the en banc majority, may reproduce a freelance photographer’s work in a reprint of the original collective work (such as a magazine, newspaper or encyclopedia) to which that photographer contributed; or a revision of that collective work; or a later collective work “in the same series.” Reproduction of copyrighted photos in a new work without permission would constitute copyright infringement.
In 2001’s New York Times v Tasini, the U.S. Supreme Court found that publishers who post freelancer-created material through Lexis-Nexis and similar online databases must first get permission from the freelancer. The difference between Tasini and these latest rulings lies in “exactness” — new products (Web sites, databases, mobile initiatives, etc.) require permission from freelancers, but 1:1 digital reprints require no further permission or payment. (Note: Presumably, most publishers now use carefully-worded contracts that stipulate digital permissions. These current cases apply to pre-digital contracts and older material).
In the majority opinion for Greenberg v National Geographic Society, one of the two recent cases, Judge Rosemary Barkett discusses the finer points of the Tasini framework:
Because the freelance authors’ articles were “presented to, and retrievable by, the user in isolation, clear of the context of the original print publication” … the publishers could not claim a privilege … Thus, the “crucial fact” for the Supreme Court was the databases’ ability to “store and retrieve articles separately within a vast domain of diverse texts” … The articles were presented to the user “standing alone and not in context.”
In Greenberg, National Geographic was in the clear because the digital archive it created included the same text, formatting, page numbers and advertising as the original print-based magazines; the digital material was not accessed “in isolation.” This is an important distinction. If the context of the original print publication — images, ads, pages numbers, etc. — is not readily available or apparent to the end user, there’s a chance publishers will not be covered by the “exact archive” privileges.
Law.com notes that add-ons, such as search engines that show results from across digital archives, do not transform reprint archives into new products.