A RETIRED PUBLIC official writes a book revealing new facts about important matters he worked on during his official career. These facts have never been revealed before. Does the retired official -- or his publisher -- own those facts, or do they rightly belong in the public domain?
The question is not hypothetical; it arises from a case now pending before the Supreme Court involving Gerald Ford's memoirs and The Nation magazine, a liberal weekly with a small circulation. The Nation revealed many of the juiciest facts from Ford's book before it was published; Harper & Row and Reader's Digest Association, Ford's publishers, sued for copyright infringement.
The dispute comes down to what book publishers call an act of theft and what The Nation described as a scoop. The publishers are trying to interpret copyright law to control the flow of information contained in a book -- which they see as property -- to reporters and the public. The issue posed is fundamental: What is news, what is a commercial property that is copyrightable and how may stories based on copyrighted material be reported?
Titans of the publishing industry have lined up on both sides with friend-of-the-court briefs. The Association of American Publishers is backing the book publishers. Newspapers including The Los Angeles Times, The New York Times and The Washington Post back The Nation.
In February 1977, Harper & Row and Reader's Digest bought exclusive rights to publish former President Ford's memoirs and to sell pre-publication excerpts. Ford agreed not to discuss publicly the "unique information not previously disclosed" that he would reveal in his book.
On March 14, 1979, Time magazine purchased the exclusive right to publish a 7,500-word excerpt from the book, prior to its publication, in its April 16 issue. The terms: $12,500 when the agreement was signed and $12,500 more when the excerpts were published. Time could renegotiate the second payment if someone else published parts of those chapters first.
In late March, a copy of the 200,000-word manuscript was secretly given to Victor Navasky, editor of The Nation. In its April 7, 1979 issue, The Nation published a lead story entitled, "The Ford Memoirs -- Behind the Nixon Pardon." The 2,250-word news story revealed Ford's view of the pardon, Ford's consideration of Ronald Reagan as a 1976 running mate and Ford's retention of Henry Kissinger as secretary of state.
The article paraphrased the book's revelations, and used direct quotations sparingly. Navasky said he wanted to "scoop former President Ford on his own memoirs." When The Nation article ran, Time asked the book publishers for permission to print excerpts a week early. But the publishers refused. Time never printed the excerpts and never paid the second $12,500.
The book, "A Time to Heal: The Autobiography of Gerald R. Ford," was published that May. The book publishers sued for copyright infringement. They wanted their $12,500. But more importantly, they wanted to show upstarts like The Nation that they could not "steal" from book publishers and get away with it.
The Nation claimed it acted legally because the Copyright Act allows a news report to make "fair use of a copyrighted work." That means a reporter can legally write about a copyrighted work in his own words and still use a few quotes, provided they don't add up to a substantial portion of the work.
At the trial level, U.S. District Judge Richard Owen of New York held against The Nation because "the article was derived almost exclusively from the memoirs" and "caused the Time agreement to be aborted." Owen said there was too little new information in the article and that it was "poor journalism."
In November 1983, the Second Circuit U.S. Court of Appeals reversed Owen and reiterated a basic concept of copyright law -- facts cannot be copyrighted, only the way they are expressed. U.S. Circuit Judge Irving R. Kaufman wrote that what is to be regarded as expression in a non-fiction work should be limited to "its barest elements -- the ordering and choice of the words themselves."
Paraphrasing from a non-fiction work is permissible unless someone has "borrowed virtually an entire work," he said. Otherwise, under Owen's logic, copyright law would give Ford and his publishers a monopoly on the facts of the Nixon pardon and the deliberations leading up to it.
The book publishers seek to control the news as though it were an ordinary piece of property. But words are a different type of property, and copyright is a different form of ownership. Our laws don't allow anyone to own a fact or have control over a piece of history.
The book publishers' lawyers wrote in their Supreme Court briefs that after the appeals court ruling, "it is clear that one may with impunity 'steal' a manuscript and publish its contents, at least if one takes care to paraphrase less than the entire work."
But that isn't what happened here. Writing a 2,250-word article with information drawn from numerous places in a 200,000-word book is not paraphrasing an entire work. The book publishers claim that 1,870 of the article's 2,250 words were copied or closely paraphrased. But The Nation contended there were only 300 words of Ford's copyrighted material in the article.
The appeals court also held that certain quotations taken from the book did not infringe the book publishers' copyright because some came from work done by U.S. government employes, for example a memo from an aide to the Watergate special prosecutor, and cannot be copyrighted because they are in the public domain.
The publishers' lawyers said that the appeals court ruling will "require a publisher to turn his publishing house into an armed camp." It will also cut his ability to sell pre- publication excerpts because "there is a real risk that someone will take for free that which is being offered for sale."
But the book publishers would not have lost $12,500 from Time if they had allowed it to publish excerpts a week early. Then the book would have benefited not only from the excerpt sale to Time and the publicity that publication would have generated, but also from The Nation's news story.
The book publishers' suit is an attempt to do something for which copyright was not intended. They are trying to get the courts to help them maintain the monetary value of huge contracts with famous writers. But copyright should protect literature and the forms of literary expression, not the factual contents of non-fiction books, and particularly not the facts contained in an ex- president's memoirs.