Re: What does Tasini decision mean for us librarians?

[Ann Okerson <aokerson@pantheon.yale.edu>]

The following message is sent courtesy of EBSCO, by Melissa Kenton on
behalf of Phil Wallas, EBSCO Vice-President for Content Development.

---------- Forwarded message ----------
Date: Mon, 25 Oct 1999 15:51:33 -0400
From: Melissa Kenton <MKenton@epexchange.epnet.com>
To: 'Ann Okerson' <aokerson@pantheon.yale.edu>
Cc: Philip Wallas <PWallas@epexchange.epnet.com>,
     Sam Brooks <SBrooks@epexchange.epnet.com>,
     Donald Doak <DDoak@epexchange.epnet.com>
Subject: FW: draft: What does Tasini decision mean for EP

Ann,

Thank you for posting this message. This recent court decision has
generated much discussion internally at EBSCO. You may find the
information below of interest. This was written by Phil Wallace EBSCO
Publishing Vice President, Content Development. I hope this is helpful.

__________________________

The recent reversal of the Federal District Court Tasini decision by the
Second Circuit means some publishers' rights to license freelance author
content for electronic distribution remain unsettled.  Essentially, the
Second Circuit said publishers do not have the distribution right that the
District Court had said they did have.  We understand that there will be
an appeal to the Supreme Court, so final legal resolution of the issues
will take some time.  The majority of EBSCO licensed content is not
affected by the decision since it was either staff written, created under
agreements that permit electronic distribution or is scholarly research,
where copyright is typically vested in the publisher.

EBSCO Information Services will continue to work with publishers to
respect authors' rights and to grow its collection of licensed content.  
Even before Tasini, EBSCO has observed publishers' instructions to exclude
certain content from its products.  In those cases, the presence of an
abstract informs the user that the article exists.  Working with
publishers, EBSCO has also been responsive to those authors who have
judged the electronic distribution of their works to be beyond the scope
of their agreements with publishers--EBSCO has removed those works from
its databases.  While EBSCO's license agreements are with publishers
rather than authors, EBSCO has also had numerous discussions with authors'
groups about author needs and concerns.  For years, some publishers have,
at considerable administrative expense, shared electronic distribution
royalties with authors.  EBSCO is developing the capability to provide
article usage reporting to help publishers manage such sharing.

EBSCO understands the following:

1. authors want wide exposure for their work and fair compensation for
multiple uses
2. libraries want complete and stable collections of content
3. publishers want the flexibility to repurpose their content for new
opportunities

Though most content in EBSCO databases is not affected, in the past, a
very small number of publications have withdrawn content from all
electronic distribution because of author objections.  While such action
protects author rights, it does little to offer exposure or earnings and
effectively blocks libraries' access to that content.  Publishers have
told EBSCO that going back to authors to negotiate rights for each new use
would be too costly to be practical.  It is EBSCO's hope that the eventual
result of the Tasini decision will be more recognition of the needs of all
parties involved, better contracts (publisher-aggregator as well as
author-publisher) and a possible clearinghouse role for authors groups.  
We would greatly prefer to expand the scope of content available to
libraries rather than step backward by reducing it.


________________________________________

> From:	Ann Okerson [SMTP:aokerson@pantheon.yale.edu]
> Sent:	Monday, October 25, 1999 1:49 PM
> To:	liblicense-l@lists.yale.edu; consort@ohiolink.edu
> Subject:	What does Tasini mean for us librarians?
>
> Finally I got around to reading the Second Circuit decision of "Tasini vs.
> New York Times," handed down on September 24th, 1999.  This decision has
> been the subject of much discussion on the cni-copyright list, but not yet
> on liblicense-l.  But, shouldn't it be?
>
> In this recent ruling, an overturn of the decision of the lower court, the
> judges gave to writers, at least freelance writers whose material is
> republished in an electronic aggregation-database, a major victory.
>
> That is, the judges ruled that a publisher who wishes to grant rights to
> an aggregator to include works in that aggregators database, may not
> automatically do so.  The publisher must have the author's permission.
> The publisher is *not* protected by the privilege against copyright
> infringement afforded to publishers of collective works.  This very
> readable decision describes the process by which a periodical or newspaper
> is made available to NEXIS and how an article loses any sense of its
> original context in the subsequent aggregated database publication.
>
> My reading of the decision, hardly an authoritative reading of course,
> says to me that the aggregations that my library colleagues and I license
> (collections like Lexis-Nexis, Academic Universe, ProQuestDirect, Ebsco
> Academic and others) are likely to contain numerous articles whose authors
> have not, therefore, given permission for inclusion in such collections.
> This in turn suggests to me that suddenly those aggregators may have
> discovered that they did not have the right to further license those
> aggregations to customers such as my library.
>
> So, now what?  Any experts out there?
>
> Ann Okerson
> Yale University Library
> Ann.Okerson@yale.edu