No. 00-201 
In the Supreme Court of the United States 

The New York Times Company, Inc., Newsday, Inc., The Time 
Incorporated Magazine Company, Lexis/Nexis, and 
University Microfilms International, 
Petitioners, 

v. 
Jonathan Tasini, Mary Kay Blakely, Barbara Garson, Margot Miffin, 
Sonia Jaffe Robbins, and Davis S. Whitford, 
Respondents. 

On Writ Of Certiorari To The United States Court Of Appeals 
For The Second Circuit 
BRIEF OF AMICUS CURIAE 
INTERNATIONAL FEDERATION OF JOURNALISTS 
IN SUPPORT OF RESPONDENTS 

PIERRE ANDRE DUBOIS 
LYN BARKOW 
BROBECK HALE and DORR 
INTERNATIONAL 

Alder Castle 
10 Noble Street 
London, UK EC 2V 7QJ 
Telephone: 011-44-207-645-2400 
Facsimile: 011-44-207-645-2424 

THOMAS M. PETERSON 
(Counsel of Record) 
BRETT M. SCHUMAN 
BROBECK, PHLEGER & 
HARRISON LLP 

One Market, Spear Tower 
San Francisco, CA 94105 
Telephone: 415-442-0900 
Facsimile: 415-442-1010 

Attorneys for Amicus Curiae 
International Federation of Journalists 

TABLE OF CONTENTS 

Page 

I. INTEREST OF AMICUS CURIAE......................................................................... 1 

II. SUMMARY OF ARGUMENT................................................................................ 1 

III. ARGUMENT............................................................................................................ 3 

A. Foreign Court Decisions Have Consistently Recognized That An 
Author Enjoys A Continuing Copyright In The Electronic Publication 
Of Her Works Even Though She Has Agreed To Include Her Work In 
A Printed Collective Work ............................................................................... 3 

B. United States Copyright Law Should Be Construed In Harmony With 
The Similarly Minded Laws Of Other Nations Unless Congress Has 
Clearly Dictated Differently ........................................................................... 10 

C. The European Experience Teaches That Court Rulings In Favor Of 
Authors’ “Electronic Rights” Do Not Result In The Withdrawal Of 
Literary Works From The Electronic World .................................................. 13 

IV. CONCLUSION....................................................................................................... 15 

i. 

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INDEX OF AUTHORITIES 

Page 

Cases 
Statutes & Rules 
Other Authorities 

ii. 

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BRIEF OF AMICUS CURIAE 
INTERNATIONAL FEDERATION OF JOURNALISTS 
IN SUPPORT OF RESPONDENTS 

I. INTEREST OF AMICUS CURIAE1 

The International Federation of Journalists (“IFJ”) is an international confederation 
of journalists' associations and trade unions. It was first formed in 1926 and today it is the 
largest journalists' group in the world, counting more than 450,000 journalists in over 100 
countries among its membership. 

The IFJ is based in Brussels, Belgium. Its overarching goal is the improvement of 
the social and professional conditions of journalists, including the protection of its members’ 
intellectual property rights. It speaks for journalists within the United Nations system and 
elsewhere in the international political and legal arenas, and works closely with international 
bodies, such as the World Intellectual Property Organization (“WIPO”), the European Union, 
UNESCO, and others, towards the achievement of its goals. 

II. SUMMARY OF ARGUMENT 

Courts, journalists, and publishers in many nations have been dealing with the issues 
presented in this case. This brief draws attention to pertinent foreign court decisions and 
considers some of the implications that arise from the fact that the issues here do not rest in 
an insulated cocoon of U.S. copyright law.2 

1 The International Federation of Journalists has obtained the written consent of all 
parties, through their respective counsel, for the filing of this brief. Those letters are on file 
with the Clerk’s Office. No counsel for a party authored this brief in whole or in part, and 
no person or entity other than amicus curiae, or their counsel, made a monetary contribution 
towards the preparation or submission of this brief. 

2 English-language translations of the foreign decisions discussed in this brief, other 
than those decisions that are available in on-line databases, are included in an Appendix to 
this brief. Citation to the Appendix is in the form “App. at __.” Certifications for these 

1. 

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A. European courts have consistently ruled that, under their respective laws, an 
author’s rights in original work take precedence over the much more limited copyright 
enjoyed by a publisher who is allowed by the author to include that original copyrighted work 
in a printed collective work, such as a newspaper or journal. Publication of work in 
electronic media (like CD-ROM or computer database) is quite distinct from publication in 
more traditional print media. Accordingly, European courts have ruled that an author’s 
consent to initial publication of an original work in a printed collective work does not allow 
the publisher the right or privilege to include the author’s work in CD-ROM’s or on-line 
computer databases. Where blanket consent has been granted, it does not include electronic 
exploitation. Thus, European courts recognize that the author retains the right to exploit this 
new opportunity for publication, at least until the author has specifically contracted it away. 
See, post, section III.A. 

B. Transnational uniformity in copyright law is a desirable objective in our 
technologically interconnected world. Uniformity should be achieved unless U.S. law or 
national interests dictate otherwise. European and U.S. copyright laws share common 
principles that counsel in favor of the parallel interpretation of those laws. See, post, section 

III.B. 

C. In nations that recognize an author’s continuing copyrights in electronic 
publications, and thus the author’s right to compensation for the electronic publication of her 
works, methods have been devised to allow licensing, thereby assuring public access to 
copyrighted works appearing in electronic media. See, post, Section III.C. 

translations, and copies of the untranslated decisions themselves, have been lodged with the 
Clerk’s Office. See “Lodgment of Materials Referenced In Brief of Amicus Curiae 
International Federation of Journalists In Support of Respondents,” lodged concurrently with 
the filing of this brief. 

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III. ARGUMENT 
A. Foreign Court Decisions Have Consistently Recognized That An 
Author Enjoys A Continuing Copyright In The Electronic 
Publication Of Her Works Even Though She Has Agreed To 
Include Her Work In A Printed Collective Work 
Berlin to Buffalo and Paris to Peoria, the basic transaction is similar. An author 
enjoys a copyright in her original work. She allows her article to be published in a printed 
compilation, say, a newspaper. She is paid by the newspaper’s publisher for the privilege of 
using the article to enhance the financial success of the newspaper and, thus, enrich the 
publisher. The author’s contract with the publisher does not address other uses of the article, 
beyond its publication in the newspaper. 

Technology has brought electronic media, and with it fresh opportunities to publish 
and exploit copyrighted works. Publishers have sold copyrighted materials for electronic 
publication, by way of such media as CD-ROM, NEXIS, and the like. Authors have sued, 
contending that they never bargained away electronic publication rights when they agreed 
to allow their original works to be included in printed collective works, like the newspapers 
or journals where their articles first appeared. The publishers generally have defended these 
suits on the ground that exploitation in these electronic media is the exploitation of the 
publisher’s pre-existing, printed collective work. 

Courts in France, Belgium, Germany, and the Netherlands have rendered decisions 
addressing this kind of circumstance. These decisions consistently favor the authors.3 They 
recognize that electronic publication is different from all prior forms of publication and 
distribution. 

3 Two cases are pending in Canadian courts. These have not yet been decided on the 
merits. See Robertson v. Thomson Corp., Case No. 96-CU-110595CP (Ontario Court Of 
Justice, General Division) (preliminary order, including a summary of the case, is available 
on Westlaw at 1999 CarswellOnt 301); Association Des Journalistes Independants Du 
Quebec v. Cedrom-SNI, Case No. C.S. Que. Montreal 500-06-000082-996 (Superior Court 
of Quebec) (preliminary ruling available on Westlaw (in French) at 1999 CarswellQue 3276). 

3. 

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These European decisions should inform the interpretation of U.S. copyright law: 
electronic publication in an on-line computer database or on CD-ROM is not a “revision” of 
the initial publication of a particular collective work; it is something fundamentally different; 
the right to publish electronically works of original authorship remains with the author, 
unless the author expressly contracts it away; a publisher’s right to exploit a printed 
collective work does not include electronic-media exploitation which has the effect of 
usurping the author’s copyright in her original work. As leading commentators have 
explained, there is a trend towards synchronization in international copyright law: 
“National laws have rather developed in response to the same media 
challenges worldwide and within overlapping legal cultures. Internationally, 
they have benefited from the ‘more or less gentle and gradual pressure towards 
harmonization’ which the Berne Convention has exercised.” See Paul Edward 
Geller, International Copyright: An Introduction at 11-12, in 1 Paul Edward 
Geller & Melville B. Nimmer International Copyright Law (hereafter “Geller 
& Nimmer”) (2000).4 

*** 
France. Le Figaro v. National Journalist Labor Union (App. at 1-7). Le Figaro, a 
major French daily newspaper, began publishing an electronic edition accessible via the 
Internet. The web site also included an archive that allowed users to search for and obtain 
copies of articles published in earlier editions of the newspaper. Journalists (and their union) 
brought suit, claiming Le Figaro’s electronic service violated the authors’ copyrights in their 
works. Le Figaro contended that its newspaper was a collective work, for which it owned 
the copyright, and it therefore was entitled to publish an electronic edition. The lower court 

4 See also Paul Edward Geller, From Patchwork To Network: Strategies For 
International Intellectual Property In Flux, 31 Vand. J. Transnat’l L. 553 (1988) (hereafter 
“From Patchwork to Network”) (arguing that intellectual property law should be harmonized 
from country to country, to the greatest extent possible, to keep pace with the globally 
networked marketplace). 

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enjoined Le Figaro from electronically accessing the plaintiffs’ articles (without their 
permission), and awarded damages. 

The Court of Appeals of Paris affirmed. The court’s decision was based in part on its 
view that e-publication “cannot be compared to an extension of the print distribution ....” 

(App. at 5) The court also rejected Le Figaro’s position on the ground that “what is 
published in this manner is not the entire newspaper but contributions, i.e. works of 
journalists, with the exclusion of pictures and certain graphics.” (App. at 5-6). The court 
concluded that the journalists’ grant of reproduction rights to Le Figaro ended after first 
publication, and Le Figaro was required to obtain further consent from the authors for e- 
publication. 

French Journalist Labor Union CFDT et al. v. SDV Plurimedia (App. at 8-33). In 
this case, journalists brought suit against Plurimedia, a company that operated an Internet 
web site publishing articles licensed from a French newspaper, Dernieres Nouvelles d’Alsace 
(“DNA”), and works from a French television station (“FR 3”). The opinion reflects that 
Plurimedia essentially was the technical service provider for the electronic publication of 
DNA’s newspaper. DNA and FR 3 determined the material that was to be published on the 
Plurimedia web site. (App. at 11). 

The plaintiff journalists contended that DNA’s license to Plurimedia for electronic 
publication of their works amounted to copyright infringement. Plurimedia contended that 
it properly licensed the works from DNA and FR 3, holders of the copyrights to their 
respective collective works. The departmental (lower) court of Strasbourg ruled that the 
journalists’ copyrights had been infringed because DNA and FR 3 had not obtained the 
authors’ electronic rights in the first place. The court enjoined Plurimedia from further 
electronic publication (without the journalists’ consent), and awarded damages. Again, the 

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theory of the French court was that electronic publication was different from traditional 
publication. (App. at 16).5 

Belgium. Association Generale des Journalistes Professionnels de Belgique v. SCRL 
Central Station, et al., 1998 E.C.C. 40 (available on Westlaw, at 1996 WL 1093217). As 
succinctly described in the court’s opinion, the defendant SCRL Central Station (“Central 
Station”) operated a service much like LEXIS/NEXIS: 
“Every evening, when the various editions of the newspapers [of the principal 
Belgian publishers] are ready and are being sent for printing, they are 
transmitted at the same time to the Central Station server. A large database of 
press articles is then formed. By means of its different products, Central 
Station offers the selective electronic distribution of that information.… The 
public can use the Central Station server via the Internet.” 1998 E.C.C. at 42. 
The union for journalists whose articles were sent to Central Station sued, claiming 
the electronic publication of their works at Central Station was copyright infringement. 
Central Station contended that electronic publication at Central Station was no different than 
traditional print distribution, for which the journalists had licensed their works. Ibid. 

The Belgian court enjoined Central Station from electronic publication without the 
authors’ express consent, and awarded a liquidated sum as damages for any future violation 
of its judgment. Id. at 46. The court reasoned, much like the French courts, that electronic 
publication is different than prior forms of distribution: 
“The members of the public who use the Internet are not the same as those 
who read daily newspapers, being far more international and more numerous. 
The Central Station system enables articles to be selected by subject, but with 
all opinions represented, whereas a printed newspaper covers numerous 
subjects, but is characterized by a certain political and social shade of opinion. 
Central Station is not designed as a tool which is intended to replace 

5 Plurimedia appealed. The opinion of the Court of Appeals of Colmar reflects that the 
journalists and the newspaper, DNA, entered into an agreement regarding the electronic 
publication of the journalist’s works during the pendency of the appeal. (App. at 26-28). 
See, post, Section III.C. 

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newspapers, but as a selective distribution service.… Therefore the printed 
press is not the same as the Central Station network.” Id. at 45.6 
Germany. Freelens Verein der Fotojournalistinnen v. Spiegel Verlag Rudolf 
Augstein (App. at 38-64). Plaintiff, a society of freelance photojournalists, sued a magazine 
publisher over the latter’s sale of a CD-ROM containing all issues of the magazine for a 
given year. The CD-ROMs contained complete issues of the magazine, including 
photographs, and excluding only advertisements. Thus, the electronic product at issue in 
Freelens appears similar to the NY Times OnDisc CD-ROM product at issue in Tasini. The 
freelance photojournalists claimed that the CD-ROMs infringed their copyrights in the 
photographs they submitted to the magazine. 

Reversing a lower court’s decision,7 the appellate court concluded that “the 
overwhelming legal consensus [is] that the CD-ROM is a new, independent type of use in 
comparison with the magazine, the annual volume and even microfiche . . . .” (App. at 52). 

The court’s analysis focused particularly on the unique features of e-media: 
“The search option in particular opens up new sales markets and thus increases 
the sales chances . . . . In addition, the economic interests of the 

author/photographer are especially endangered in the case of transmission of 
his photographs on CD-ROM, because once an image has been digitized, it can 
be processed without any loss of quality, even worldwide over data networks. 
Parallel use on multiple computers is even possible in server operation, unlike 
the annual volume of a magazine or microfiche.” (App. at 53-54). 

The German court rejected the publisher’s argument that requiring it to locate and 
obtain electronic rights from innumerable photojournalists was unduly burdensome. (App. 

6 The Brussels Court of Appeals affirmed. The decision is discussed in Jane C. 
Ginsburg, Electronic Rights in Belgium and France, 22 Colum.-VLA J.L. & Arts, 161-163 
(1998), and an abridged version of the opinion is included in the appendix to the law review 
volume containing Professor Ginburg’s article. See 22 Colum.-VLA J.L. & Arts, 177, 195- 
197. The Court of Appeals also ruled that “the electronic distribution that the appellant 
proposes is a distinct and parallel one, and brings a new and added value.…” Id. at 197. 

7 The lower court accepted the publisher’s argument that the CD-ROM compilation 
was merely a substitution for the microfiche anthologies previously put out by the magazine, 
to which the photojournalists did not protest. 

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at 59). The court noted that “to prevent countless additional agreements, a solution to the 
problem must be achieved with the help of the performing rights companies.” (Ibid.) The 
court remanded the case to the lower court for a determination of damages. 

Netherlands. Heg, et al. v. De Volkskrant.8 Three freelance authors, and the Nether- 
lands Association of Journalists, sued the large Dutch newspaper De Volkskrant, contending 
that electronic publication of their works on the De Volkskrant Internet web site, and in a 
quarterly CD-ROM compilation of the newspaper, violated their copyrights. As in Tasini, 
there were no written license agreements, and the plaintiffs contended that implicit licenses 
were granted only for first-run traditional print rights. See Hugenholtz, supra, 22 Colum.- 
VLA J.L. & Arts at 155. De Volkskrant defended on the grounds that the electronic 
publication and electronic archiving of plaintiffs’ works were no different than the microfilm 
volumes previously published by the newspaper, to which the plaintiffs had not objected. 
Ibid. 

The Amsterdam District Court ruled in favor of the authors. The court viewed the 
CD-ROM as a new compilation of separate articles “by which circumstance the cohesion 
which makes these articles a newspaper in the paper edition is lacking in the CD-ROM.” Id. 
at 186. The court also ruled that the De Volkskrant Internet web site differed substantially 
from the newspaper’s print version, both in content and in its global reach. Ibid. The court 
concluded that the CD-ROM and Internet versions of De Volkskrant were not simply 

8 This decision is summarized in P. Bernt Hugenholtz, Electronic Rights and Wrongs 
In Germany and The Netherlands, 22 Colum.-VLA J. L. & Arts 151, 155-159 (1998). An 
abridged version of the decision is included in the appendix to the law review volume 
containing Professor Hugenholtz’s article. See 22 Colum.-VLA J.L. & Arts 177, 181-189. 

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extensions or substitutes of existing archival or documentary media, but rather amounted to 
“independent form[s] of reproduction and publication.” Ibid. 9 

*** 
These decisions are based on the judicial recognition that electronic publication is 
different than other, more traditional forms of publication and distribution of original works 
of authorship.10 This distinction applies equally well in the U.S. and it should guide the 
Court’s construction of provisions of the Copyright Act: 
“The reason that newspapers and magazines have traditionally settled only for 
the right to be first to publish an author’s article is because the value of 
publishing the article lies almost entirely in being the first publisher to put it 
into print …” 
“The principle has been turned on its head as newspapers and magazines now 
publish electronically to a potential worldwide audience and the stories they 
publish have more lasting value in online databases. Individual articles, 
though they previously had a lasting value in libraries, are now far more 
accessible through online databases and even represent a profit center …” 
Matthew Hoff, Tasini v. New York Times: What The Second Circuit Didn’t 
Say, 10 Alb. L.J. Sci. & Tech. 125, 161 (1999). 

There is another feature of the European decision decisions that should be considered. 
European courts have relied on the way in which the electronic media are used when 
considering the question whether they: (a) are akin to the traditional print publications, 
including microfilm and microfiche, that the authors agreed to license, or (b) are something 
significantly different, for which the publishers must be required to remit a portion of their 

9 Professor Hugenholtz notes at the conclusion of his article that De Volkskrant filed 
an appeal in this case. Id. at 158. Neither amicus curiae nor their counsel have been able to 
locate any further court decision. 

10 Notably, the European decisions are not based on violations of the authors’ “moral 
rights.” Some European jurisdictions afford copyright holders both a “moral right,” which 
may be defined roughly as paternity of a work and a right to object to its derogatory 
treatment, and an “economic right,” which more closely parallels the bundle of exploitation 
rights afforded under U.S. copyright law. In the European cases we have described in this 
brief, the courts have reasoned that electronic publication violates the authors’ economic 
rights. 

9. 

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electronic publication license fees to the authors. Like Central Station in Belgium, 
LEXIS/NEXIS and the CD-ROM products are “not designed as a tool which is intended to 
replace newspapers, but as a selective distribution service ....” LEXIS and the CD-ROMs 

are used for research purposes, by searching for individual journalists’ articles by subject 
matter or other criterion.11 The products do not substitute for the hard-copy newspaper 
delivered to the doorstep each morning. Indeed, these products have substantial economic 
value precisely because they are not merely “revisions” of traditional printed newspapers. 
Similarly, they represent an economically valuable improvement over microfilm and prior 
generations of research tools. 

B. United States Copyright Law Should Be Construed In Harmony 
With The Similarly Minded Laws Of Other Nations Unless 
Congress Has Clearly Dictated Differently 
In an electronic world, where technology defies traditional borders, it is important that 
transnational intellectual property laws maintain a cohesion and uniformity to the maximum 
extent consistent with vital national interests. Cf. Geller, supra, International Copyright: An 
Introduction, at 11-12 in Geller & Nimmer. 

A “primary objective” of the Berne Convention, to which the United States has 
subscribed, is “to protect, in as effective and uniform a manner as possible, the rights of 
authors in their literary and artistic works.”12 Irene Segal Ayers, Comment: International 
Copyright Law And The Electronic Media Rights of Authors and Publishers, 22 Hastings 
Comm/Ent L.J. 29, 58 (1999). “The aim of most international initiatives in the field of 

11 See, e.g., Brief of Amicus Curiae of Ken Burns, et al. In Support Of Petitioners 

12 The Berne Convention for the Protection of Literary and Artistic Works is “the 
highest internationally recognized standard for the protection of works of authorship of all 
kinds.” It “has been the major multilateral agreement governing international copyright 
relations” for more than 100 years. See S. Rep. No. 100-352 (regarding P.L. 100-568, Brene 
Convention Implementation Act of 1988), 100th Cong., 2nd Sess. 2 (1988). 

10. 

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copyright law is to achieve a mosaic or ‘seamless web’ of territorially-bound, national 
systems of copyright protection.” Graeme W. Austin, Domestic Laws and Foreign Rights: 
Choice of Law In Transnational Copyright Infringement Litigation, 23 Colum.-VLA J.L. & 
Arts 1, _ (1999); cf. Geller, supra, From Patchwork To Network, 31 Vand. J. Transnat’l L. 
at 569 (“[I]n the field of intellectual property generally, international treaties, such as the 
Berne and Paris Conventions, have proved effective in forestalling many, though far from 
all, of the conflicts to which patchwork law is susceptible.”). 

European and U.S. copyright laws are similar in important respects. Both recognize 
a hierarchy between an author’s copyright and that of the publisher of a collective work. 
Compare Warren Publishing, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1514, n. 16 (11th 
Cir. 1997) (“There are three types of work that are entitled to copyright protection – creative, 
derivative, and compiled . . . . A creative work is entitled to the most protection, followed 

by a derivative work, and finally by a compilation.”) and Feist Publications, Inc. v. Rural 
Telephone Service Co., Inc., 499 U.S. 340, 349, 111 S.Ct. 1282, 1289, 113 L.Ed.2d 358 
(1991) (“This inevitably means that the copyright in a factual compilation is thin.”) with, e.g., 
Dr. Adolf Dietz, Germany, in 2 Geller & Nimmer, at 19 (noting how the “main purpose and 
noblest task of [German copyright] law is to furnish protection to writers, composers, visual 
artists, and other human creators.”). 

The copyright interest of the author/publisher of the compilation is limited to the 
selection and arrangement of the included works, and does not extend to the works 
themselves. See Feist, 499 U.S. at 348; Herman Cohen Jehoram, Netherlands, in 2 Geller 
& Nimmer, at 17 (noting that Dutch copyright law “does not give extensive rights” to 
publishers of compilations because publishers’ rights are “subject to the copyright in each 
of the separate works.”); Dietz, Germany, in 2 Geller & Nimmer, at 28 (explaining how, 
under German copyright law, “[c]ompilations are protected by copyright if, by virtue of the 

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selection or arrangement of their components . . .they are protected as independent works, 
without prejudice to the copyright in the works thus collected, if indeed any works as such 
are included.”). 

While European copyright regimes may not include statutory provisions like 27 
U.S.C. § 201(c), affording a “privilege of reproducing and distributing … any revision of [a] 
collective work…,” it is recognized that European publishers do have the right to publish 
revisions, new editions, and annual compilations of their compilation works – in print – 
without the need for further consent from contributing authors. Typically this is 
accomplished by virtue of the “purpose of grant” doctrine, which holds that, unless otherwise 
specified, an author grants those rights necessitated by the purpose pursued in the grant at 
issue. See, e.g., Hugenholtz, supra, Electronic Rights and Wrongs in Germany and the 
Netherlands, 22 Colum.-VLA J. L. & Arts at 153-154 (describing the purpose of grant 
doctrine); FreeLens (App. at 52 (“CD-ROM is a new, independent type of use in comparison 
with the magazine, the annual volume and even microfiche in the sense of [the purpose of 
grant doctrine] . . . .”). 

Thus, working with similar concepts and basic copyright principles, European courts 
have concluded that electronic publication of copyrighted works differs so substantially from 
traditional forms of publication and distribution that additional consents from individual 
copyright holders are required. 

This suggests that, for purposes of interpreting 27 U.S.C. 

§ 201(c), electronic publication should not be considered a “revision” of prior forms of print 
publication. 

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C. The European Experience Teaches That Court Rulings In Favor Of 

Authors’ “Electronic Rights” Do Not Result In The Withdrawal Of 
Literary Works From The Electronic World 
The practical issue here is whether, on the one hand, publishers may keep entirely for 
themselves the money they obtain by exploiting electronic publication or whether, on the 
other hand, the authors are entitled to share in the fruits of electronic publication because 
their original works of authorship are being exploited. 

The publishers predict a bibliographic Armageddon where fear of copyright infringe- 
ment liability to widely scattered authors, and the inability to construct an effective licensing 
system, “will require publishers and electronic database companies, nationwide, irreversibly 
to delete tens of thousands of freelance contributions currently stored in electronic achieves 
… [and] [i]t also will force the wholesale destruction of CD-ROMs containing 
periodicals.…” Petition For A Writ of Certiorari, at 2. 

“The proof of the pudding is in the eating.”13 The approaches taken in countries that 
have recognized authors’ rights in electronic publication media should assuage the fears that 
have been expressed in this case. 

In France, after the Plurimedia decision, the journalists’ union and DNA entered into 
a negotiated agreement regarding compensation of the journalists for e-publication rights to 
their submitted works. (App. at 26-28; 34-37). The journalists are to receive ten per cent of 
the net profit earned by the publisher as a result of the freely available electronic publication 
of DNA, subject to an annual minimum compensation amount, and eight per cent of the gross 
income earned by the publisher for paid use of its electronic publications. 

The Norwegian Union of Journalists and the Norwegian Newspapers Publishers’ 
Association reached an agreement regarding compensation for electronic publication of the 
authors’ works even in the apparent absence of a judicial decision. See Agreement on 

13 Darr v. Burford, 339 U.S. 200, 232 (1950) (Frankfurter, J., dissenting). 

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Copyright Between NJ (Norwegian Union of Journalists) and NAL (Norwegian Newspapers 
Publishers’ Association)/UA (Norwegian Weekly Magazines Employers’ Association) 
<http://www.authorsrights.org/doc/agrnal.pdf > (as of 2/16/01). 

Authors receive a pre- 

determined compensation for some channels of electronic publication, (e.g., Internet 
publication), and some forms are left open to future, project-specific negotiation (e.g., CD- 
ROMs, DVDs). 
There are also examples from Germany of agreements regarding electronic 
publication between authors and publishers. See, e.g., MTV Zeitschriften 
<http://www.authorsrights.org/doc/agrmtvz.pdf> (as of 2/16/01). Under this agreement, for 
example, certain authors whose works are exploited electronically by the publisher are 
entitled to share in the publisher’s profits from electronic publication. 

In addition, clearinghouses similar to ASCAP14 have developed to assist in the 
management of electronic rights. The Electronic Rights Licensing Agency (“TERLA”) is 
a non-profit Canadian-based copyright collective organization that provides “a place where 
publishers can clear rights and . . . a service keeping track of and monitoring usage, 
collecting and distributing royalties.” <http://www.terla.com/policy.html > (as of 2/16/01). 
The Authors’ Licensing and Collecting Society (“ALCS”) is a non-profit London-based 
organization also exploring ways to manage electronic rights licensing. 
<http://www.alcs.co.uk/introduction.html > (as of 2/16/01). ALCS is developing ByLine, 
an Internet syndication service. The service “offers both print syndication and licensing for 

14 “’ASCAP was organized as a ‘clearing-house’ for copyright owners and users to 
solve these problems” associated with the licensing of music . . . its 22,000 members grant 
it nonexclusive rights to license nondramatic performances of their works, and ASCAP 
issues licenses and distributes royalties to copyright owners in accordance with a schedule 
reflecting the nature and amount of the use of their music and other factors.” Broadcast 
Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 5, 99 S.Ct. 1551, 155, 60 
L.Ed.2d 1. 

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electronic use in other databases, in multimedia and multi-author projects like CD-ROMs.” 
<http://www.alcs.co.uk/depts_ByLine.html > (as of 2/16/01). 

This is by no means a comprehensive listing of all electronic rights agreements, 
clearinghouses, or solutions to the management of electronic rights. These examples from 
outside the United States suggest that authors and publishers are capable of reaching 
agreement regarding electronic publication issues and compensation. They demonstrate that 
creative people can come up with creative solutions to the management of electronic rights. 
And, significantly, electronic resources have not completely disappeared in Europe in 
response to court rulings favoring the electronic rights of authors in their copyrighted works. 

IV. CONCLUSION 

The judgment of the Court of Appeals should be affirmed. 

Dated: February 16, 2001 
Respectfully submitted, 

THOMAS M. PETERSON 
(Counsel of Record) 
BRETT M. SCHUMAN 
BROBECK, PHLEGER & HARRISON LLP 
PIERRE ANDRE DUBOIS 
LYN BARKOW 
BROBECK HALE and DORR 
INTERNATIONAL 

_____________________________________ 
Thomas Peterson 
Attorneys for Amicus Curiae International 
Federation of Journalists 

15. 

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