This post is part of a series of posts entitled A Legal Guide to the Internet. For a comprehensive list of articles contained in this series, click here.
The exclusive rights held by the copyright owner can be licensed to other parties. This license provides the user with permission to use the copyrighted work without infringing the copyright. Therefore, it is essential that any on-line business that makes considerable use of another party’s copyrightable subject matter determine to what extent a clearance of rights is necessary or if a license should be obtained.
Seeking a License
When seeking a license from the copyright owner, one should make sure that the party granting the license is in fact authorized to provide the license. In Tasini v. New York Times Co., 972 F. Supp. 804 (S.D.N.Y. 1997), a group of freelance writers sued the owner of an electronic database and the producer of CD-ROM products as well as several newspaper and magazine publishing companies, alleging the electronic distribution of their articles infringed their copyrights. The freelance writers contributed articles to be included as part of a collection of works within the newspapers and magazines. The Second Circuit Court of Appeals, in Tasini v. New York Times Co., 206 F.3d 161 (2nd Cir. 1999), reversed the lower court ruling, which found that the placement of copyrighted works on databases is merely an “editorial revision” and therefore not infringing. The Second Circuit Court of Appeals reasoned that just as a publisher, who is granted the right to distribute an article as part of a collection, is not permitted to sell a hard copy of an individual article without the author’s consent, the publisher is also not allowed to sell such an article through electronic means. The Supreme Court affirmed, emphasizing that while the publishers owned the copyright to the collective works, the authors retained all other rights related to their individual contributions to the collection, absent an express transfer of such rights. See New York Times Co. v. Tasini, 121 S. Ct. 2381 (2001).
When considering publication rights, it is important to consider the scope of the license. Some previously obtained license agreements may not have granted broad enough rights to cover the Internet and may even be limited to rights appropriate to motion picture and television only. If a company is currently preparing an agreement, it should make sure that the language is broad enough to cover all media and methods or technologies that are now known or will be created in the future. Content providers and publishers/distributors of content on the Internet must consider the copyright laws and how they impact specific activities. It is recommended that written agreements be entered into with any content provider, on-line network service, or other parties to the extent copyrighted material will be created or distributed via the Internet.