The Collective Work in the American Copyright and the Question of its Revision by the Right Holder

The collective work, which thrives in France today, is totally ignored by the British copyright. It is the object, on the other hand, of an important legislation in the United States, which differs from the French legislation as set in article 113-2 al. 3 of French Intellectual Property Code. We present today the legislation applicable to this plural creation by the Copyright Act of 1976.

The collective work is defined in section 101 as: “a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole“. First of all, it is important to understand well that the collective work belongs to the “compilations” format. It includes periodic publications, such as newspapers, anthologies or encyclopedia. As any compilation, the collective work is protected on the condition that his/her author demonstrates originality in the choices made and in the organization of the contributions (on this question see the news in brief n°2). Unlike the protection of compilations in numerous countries of continental author’s right, the contributions made in the collective work in American copyright have to be protectable themselves (in France, for example, the compilation can compile statistical data which are obviously not protectable by copyright themselves).

The rules applicable to the collective work are imposed by article 201 (c): “Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series“. Like in French law, article 201 distinguishes the property of the whole and the property of the contributions. The individual contributions remain in principle the property of the authors. The Copyright Act allows however for the opposite to be stipulated in a contract. The owner of the collective work can acquire by contract the control of the various contributions. It is also possible that the conditions of work made for hire apply to the contributions (on this point see the news in brief n°4). In other words, the producer of an anthology could be a right holder on the whole, by virtue of the collective work, and a right holder of the contributions, by virtue of the work made for hire. In case of silence of the contract, however, or for lack of one of the conditions of the work made for hire, the copyright holder is presumed to only have the right of reproduction, distribution and revision on the collective work. The American jurisprudence focused on the question of the revision. What does “any revision of that collective work” means? The decision of the Supreme Court New York Times Co. V. Tasini[1] ruled in 2001 offers a beautiful illustration of this difficulty of interpretation. Free-lance journalists had been paid for the contribution of articles to newspapers and magazines to be published on paper. Contracts did not in any way ruled the question of the transfer of digital rights (or of transfer of the rights for reproduction on CD-ROMs); publication on the Internet had not being raised at the time of the publication of the articles on paper. Magazines and newspapers, a few years later, distributed these articles under an electronic form (Internet, CD-ROM) without the authorization of the authors. Journalists therefore demanded a financial compensation for this new use. The question was therefore whether we were or not in presence of a “revision of the collective work”? The Supreme Court answered no because the articles were individually available for users consultation on the electronic databases. It was thus not a revision of the collective work, as a whole, but an individual electronic exploitation of the contributions, outside of the context of the newspaper or magazine. The American judges now apply the directives set in the Tasini case which imply that the right of revision applies only on the condition that the revision maintains the articles in their context of origin. In the ruling Faulkner v. National Geographic Enters Inc.[2] of 2005, for example, a Court of Appeal ruled that that the electronic version of a newspaper which resumes identically the paper version (including in particular advertisements, photographs …) was a revision of the collective work in the sense of the article 201 (c).


[1] New York Times Co. V. Tasini 533 U.S. 483 (2001)[2] Faulkner v. National Geographic Enters. Inc 409 F. 3d. 26 (2d Cir. 2005)