The U.S. Supreme Court has agreed to consider whether the publisher of a print publication may add an article written by a freelance writer to an electronic database without the author's permission when there is no contract between the parties or the contract does not specifically cover the future use of the article in an electronic database. Six freelance writers are pursuing the case and claim the right to publish a printed version of an articles does not automatically include the right to publish it electronically.
Copyright law allows a publisher to include an article without the author's permission in a revised version of an original publication, but a federal appeals court in New York ruled last year that an electronic database does not qualify as a revision of an original print publication.
There is considerable disagreement, about the potential impact of a Supreme Court ruling that agrees with that of the New York court. Lawyers for the publishers and database companies argue that losing the right to publish electronically would require the deletion of more than 100,000 articles from widely used electronic databases, a costly and cumbersome undertaking, and one which would "create holes in history." Lawyers for the authors contend that fewer than 1% of articles would be affected-a seemingly small percentage, but one that probably is equal to 100,000 or more articles.
Although the case was brought by authors of magazine and newspaper articles, it has fueled a long-standing dispute between authors of books and their publishers. Random House, the largest English-language publishing house, has announced that it will evenly split its electronic book sales revenue with authors. Although authors typically receive 10% to 15% of the cover price on the sale of hardcover books and 7.5% of the cover price of paperbacks, authors have received half the proceeds when a publishes sells a license to use the contents of a book to another publisher. The Random House policy would consider an electronic publication analogous to the licensing of the contents of a book to another publisher.
Bertelsmann, Random House's parent company, likely will set a precedent the rest of the industry will follow to keep the issue of electronic book revenue out of the courts. The Authors Guild, a writer's trade group, had not yet commented on Random House's move at the time LSN went to press, but the response is expected to be favorable because it has called for an even split in the past.
Bertelsmann is also a major magazine publisher. A company spokesman chose not to speculate whether the company would await a Supreme Court decision, probably in 2001, or offer financial compensation to freelance authors who do not participate in litigation.
