Copyright
and
Authors’ Rights

The information age is not about technology. It is about information - about content.

The information age is primarily an explosion of new media, which new technology makes possible. But all media are means of delivering - and selling - words, pictures and sounds.

The nature of the commercial sections of the new media will be shaped by the ways content is bought and sold. These will therefore, to a significant extent, influence the development of our societies.

Whoever controls the content, controls the medium. Is that control to lie in the hands of Murdoch of News International and the suits at Disney, whose sole concern is maximum profits for shareholders? Or is it safer in the hands of individual creators, whose income depends solely on their reputation for accurate, high-quality work?

There are reports that publishers already include the intellectual property they have licensed from freelances on their balance sheets, with a value of at least 30 times what they paid for it.

Since November 1994 publishers in the US and the UK have launched a sustained attack on freelance contributors' rights.

Freelances are resisting strongly. In some cases, publishers have backed down.

This experience has led many freelances and their organisations to a greater awareness of the differences between authors' rights and copyright in different countries.

The electronic publishing revolution is being led from the English-speaking countries, particularly the US and to a lesser extent the UK. Yet these countries' intellectual property regimes are aberrations by world standards. Many journalists in the UK have been convinced that our long-term goal should be to secure proper authors' rights. In the USA, the concept of "moral rights", let alone the foreign concept of "authors' rights", have yet to reach the active awareness of many journalists.

The difference between copyright owned outright by publishing corporations on the one hand - and authors' rights on the other - is the difference between an extension of monopoly power in the new media - and a full expression of the diversity which the new technologies make possible.

The excuse that the publishers give for their attempt to get creators to hand over all rights is the administrative difficulty of making many small payments to contributors. Creators' organisations in the US and the UK are responding by setting up collecting societies and registries. These effectively call the publishers' bluff: "if you won't do some fairly simple computer programming, we will!"

No-one expects, oddly, that publishers will see the task of collecting very large numbers of small amounts of money from the readers-cum-viewers of their new media products as "too difficult".

It is questionable whether US and UK law satisfy the countries' obligations under the international law of the Berne Conventions or, for example, the European Convention on Human Rights. Various organisations and individuals are considering legal actions to test this.

Creators in other countries cannot simply ignore these issues as problems of the unfortunate Anglo-Saxons.

The technical and legal standards for the new media are being set largely in the USA. The impact of the new media will be significant in all developed countries within ten years or so. If the creators who suffer from the Anglo-Saxon legal aberration were to lose the struggle, then French and Italian and Kenyan creators would lose their rights by default - and the power of the largely US-based media corporations would be unchallenged.

The corporations which seek (as is their duty) to maximise profits by controlling the new media - and by owning their content outright - operate internationally. Creators' response must be international.

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The newspaper of the future?

No-one can tell what all the new media will look like. But the "electronic newspaper" provides a model.

In 1995, many newspapers rushed to produce electronic editions. At present, these are made available freely on the World-Wide Web. Most require electronic readers to "register", giving their name and address and getting some kind of password.

The publishers do not, of course, envisage giving their product away free for ever.

They could at some point ask for an annual subscription from electronic readers who want continued access. But this is almost certainly not a good way of selling newspapers. Traditionally, a high proportion of newspaper sales are "impulse buys".

The commonly-accepted model for commercial on-line publication is "pay-as-you-read". In the future, an electronic newspaper might present you with a free contents page and perhaps some free stories and pictures. It would then charge you a few cents to read each story. The stories themselves could offer "links" to earlier stories on the same subject, or to background documents too large to include in the paper edition.

The newspaper will in effect be syndicating its own current - and back - issues to its own readers.

Various companies are developing "electronic cash" additions to the World-Wide Web technology which will make a "pay-as-you-read" newspaper possible within the next year or two.

There is nothing wrong with this in principle. Indeed, it offers exciting possibilities for creative creators.

But, as noted contributor to the UK Daily Telegraph Claire Rayner put it when the paper asked for all rights in her work for no extra payment: "I want to have a tiny little share in it - nothing excessive, just my share."

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The publishers' attack on freelance rights

In the UK, the issue came "alive" when, in December 1994 and January 1995, computer magazine publisher sent letters to all its freelance contributors, demanding that they hand over all rights in their future work, for no additional money.

This was not the first attempt by publishers in the UK to gain "all rights".

IPC had for years been demanding that contributors sign the back of their cheques before they could be cashed, claiming that the signature handed over "world rights" in the work. Freelances who attempted to negotiate different terms were told by some editors that they had no choice: they could sell all rights or not work for IPC, the largest publisher in the UK.

The NUJ believes that IPC's attempt to impose conditions through a signature on the back of its cheques is illegal under the UK law which defines "a cheque". IPC's action, like many other publishers', also bears investigation under the European Union catch-phrase "abuse of a dominant position".

The Guardian newspaper had informed (some of) its contributors that it demanded all rights, to cover the re-use of text in the FT-Profile computer database, the edition on tape for the blind and, as one editor memorably put it, "any edition carved in hieroglyphs on disks of dried dung". Many contributors, however, were never told about this claim.

And US computer publisher Ziff-Davis had for some months been demanding "all rights world-wide, in all forms and media, whether now or hereafter known"; asserting that "You unconditionally and irrevocably waive... all moral rights in the contribution"; and setting a kill fee of 25% (against the standard 50%). Worse, in clause 11 it asserted: "you shall not, directly or indirectly, perform any service for... or permit the publication of any material written by you in any publications which are directly competitive with any [Ziff] Publication."

However, a high proportion of VNU contributors subscribe to the same electronic bulletin board service. And this group included a high proportion of the people in the UK who then understood what the issues in electronic publishing are. Within hours of the letter arriving, contributors were sending each other furious messages and pledging that they would not sign.

Later in January 1995, style and music magazine publisher EMAP Metro waded in with a demand for all rights, noting that "the scope of this contract... shall be the universe". Contributors obtained a list of each others' phone numbers and by April more than 100 had signed a letter promising not to accept the company's conditions. The NUJ advised members who were feeling under financial pressure that they might agree to the terms for an individual piece of work, but that under no circumstances should they agree anything about future work.

By March 1995 the list of publishers taking very similar action had grown to include computer publisher Future, the Times and Times Supplements, and the small independent Nursing Standard.

On March 2, the Daily Telegraph posted letters informing contributors that from that date "the commissions that we give you - and any unsolicited pieces that you may submit and which we may accept for publication - will be on the basis that copyright in the piece will be vested in us without further payment..." Photographic agencies and many writers responded immediately and within four days the newspaper had dropped the proposed terms. Nothing more had been heard of them by November.

Over the next few months, more small publishers - and even the internal publications department of the Post Office - joined in.

The next significant development was a statement from the UK Periodical Publishers' Association. This set out its position on copyright law reform in bland terms thus:

  • Employee rights must be the property of the publisher
  • Moral rights must be negotiable (on the continent of Europe generally they are not - the author continues to have a say
  • Retrieval, storage and transmission of data must all be acts covered by copyright vested in the work
  • The new sui generis rights protecting databases must become universal through adoption in the international copyright treaty, the Berne Convention.

Later in November, EMAP Business Publications called all its editors to a meeting, having distributed a paper setting out its position. As the Freelance heard it, the meeting closed in uproar with 30-40 editors shouting for their questions to be answered. Senior management said "No we're not taking any more questions" and closed the meeting. The most interesting point in the letter to editors was:

I should emphasise that it is necessary under law for us to receive a contributor's written consent to our reuse of the copy; it is not sufficient for us to assert our rights.

This contradicts the other publishers' belief that they can gain all rights in a freelance's future work with one signature.

The most prominent case in the USA has certainly been that of the New York Times, which in July 1995 wrote to its contributors announcing that they would be considered as doing "work for hire". They would thus, in the Times's interpretation of US law, have no rights in their work at all.

The ASJA, NWU and Authors' Guild jointly launched a campaign against this rights-grab. Over 300 writers, including some very prominent names, have put their names to a statement condemning the Times' action. Initial signatories included Russell Banks, David Bradley, Barbara Ehrenreich, Ken Follett, Erica Jong, Garrison Keillor, Barbara Kingsolver, Nicholas Lemann, J. Anthony Lukas, Letty Cottin Pogrebin, Alvin Toffler, Heidi Toffler and Fay Weldon.

  • This has necessarily been a highly condensed account. For more details, discussion of the contracts, and standard response letters, see the chronology. This links to articles from the Freelance, newsletter of London Freelance Branch of the NUJ.

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Freelances resist

As noted above, high-profile resistance to the publishers' attempts to impose terms started in the UK with the VNU contributors. Many are still refusing to sign.

The fact that a kind of collective stance could be arrived at within 48 hours - among competing freelances, yet - demonstrates the power of electronic communication in organising the new workplace, or lack of place. The fact that it is, to be honest, unclear exactly what has happened since demonstrates the difficulties of a medium with a very short attention span.

As noted above, over 100 EMAP Metro contributors signed a letter to management. Large numbers of these attended meetings. Informal talks with management continue. Management will not meet with any trade union, and will not apparently meet with an official representative of the freelances - so informal encounters have taken place in some rather unlikely places.

The rapid climb-down by the Telegraph is probably due to the action of photo-agencies. Half a dozen contacted each other immediately they received the letters, and in effect said to editors: "If you want any photos in tomorrow's paper, you're going to talk to us now." The response from writers, including many major names who have the Editor's private number, was strong enough that, reportedly, he was heard wandering around the office demanding that "someone get these fucking suits off my back". ("Suits" here means the company lawyers upstairs who had written the letter.)

The NUJ has taken three initiatives for the longer-term campaign.

First, it did something which in retrospect should have been obvious: it attempted to discover for which companies its freelance members regularly work. This should enable the union in future to respond to moves by publishers by contacting key freelance contributors. The union has been supportive of responses by all freelances working for a publisher, whether they are members of the NUJ, another organisation, or none.

Second, the Deputy General Secretary called a meeting of all the organisations we could think of which represent writers, photographers or designers. This meeting formed the Creators' Copyright Coalition. This now brings together more than 15 organisations and individuals are attempting to strengthen links with coalitions representing other creators' interests, notably music performers and record producers.

Third, the NUJ has funded a feasibility study on the possible roles of collecting societies and similar bodies in strengthening freelance creators' positions.

Many of the most important positive developments, however, have taken place in the United States. The temptation to ascribe this to the difference between the stereotypical go-getting US culture and the frightfully reserved Brits is strong, and probably well- founded.

The National Writers Union, for example, has been able to negotiate agreements for an extra fee for electronic use - for example with Times-Mirror's SkiNet.

Better, Times-Mirror has offered some creators a choice between an addition to a flat fee and a share of electronic publishing revenues - for example Harper's.

Tasini et al -vs- New York Times et al

Possibly the most important move in the USA is the law-suit brought by Jonathan Tasini, President of the National Writers' Union, and other members against the New York Times, database publisher Mead Data Central, and others.

The suit alleges that the newspapers involved made the NWU members' copy available to the database publishers, and that the database publishers distributed it, in breach of the members' copyright. A round of pre-trial hearings is expected at the time of writing (November 1995).

Whatever the outcome of these hearings and of any eventual trial, the case is important for having concentrated publishers' minds.

Operation Magazine Index

Lay members of the National Writers Union are running Operation Magazine Index. This enables members to check where their work has appeared through on-line services and to approach the publishers. As time permits, OMI volunteers do speculative searches and send the results to members - "look what's been happening to your work!"

This approach can get results quickly as the experience of one NUJ member shows.

The Authors' Registry

The American Society of Journalists and Authors (ASJA) approached the Authors Guild about setting up a registry of creators. (Please forgive any significant stages in the credit/history that are omitted here.)

The result was the Authors Registry. In its first stage, this simply operates as a "Yellow Pages" for creators, largely writers. Publishers can contact the Registry to discover which organisation represents a creator.

In July 1995, the NUJ joined its freelance members to the Registry, taking the number of creators involved to some 60,000 in the USA and UK.

Organisations which had by then signed up their members included: American Society of Journalists and Authors; Authors Guild; Canadian Science Writers Association; DC Science Writers' Association; Dramatists Guild; Editorial Freelancers Association; Garden Writers Association of America; Mystery Writers of America; National Association of Science Writers; Outdoor Writers Association of America; Romance Writers of America; Society of Childrens Book Writers and Illustrators; Text and Academic Authors Association; Travel Journalists Guild; and Washington Independent Writers. Several literary agents have also affiliated.

In later stages the Registry is planned to develop first into a direct referral service to those creators who choose to affiliate personally; then into a collecting society.

Publication Rights Clearinghouse

In August 1995 the National Writers Union announced to its members the Publication Rights Clearinghouse (PRC). This is likely to be the first creator-controlled full-blown electronic collecting agency for writers, set up by agreement between the National Writers Union and CARL, which is one of the largest "wholesalers" of electronic documents in the world. CARL was the Colorado Association of Research Libraries, but is now a key player in the market for electronic document delivery.

ASMP Photographers' Project

The American Society of Media Photographers is setting up a licensing and registration system for photographs. (Under US law, though since the country signed the Berne Concention registration is probably not absolutely required to enforce copyright, it is still customary.)

More details will be posted as soon as we can get them in electronic form, or contact the 1995 President of the ASMP, Matt Herron. Typically, this initiative seems to have originated from the hard work of working creators (Matt!) rather than from their organisation's centre.

ASJA Contracts Watch

The American Society of Journalists and Authors (ASJA) has a very active Contracts Committee. Besides offering advice and negotiating support to individual members, it produces a regular Contracts Watch briefing. This is available to non-member creators as an internet "mailing list". Send an electronic mail message with the text SUBSCRIBE ASJACW-L to the address majordomo@eskimo.com to receive briefings in your electronic mailbox roughly every month. (The Subject line of the message is ignored by this mailing list robot.) Contracts Watch carries some news from UK creators, courtesy of electronic distribution of the NUJ's London Freelance Branch bulletin the Freelance every two months. The International Federation of Journalists would seem to be the appropriate body to sponsor an extension of this useful project beyond the English-speaking world.

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Authors' Rights versus copyright

In brief, US and UK laws define "copyright" as a "property right". Mainland European law, in general, defines authors' rights as human rights.

The key difference, as we see it, is that a property right is by definition something which can be "freely traded". In this context, "free trade" means that the transfer of rights is governed only by economic power.

US and UK law then define moral rights - essentially a poor translation of the French "droit moral" subdivision of "droit d'auteur". These are a source of confusion to many UK creators, and of total bafflement to most in the US. This is hardly surprising. "Moral rights" represent a grudging and heavily-qualified recognition of an entirely different legal philosophy to "copyright".

Authors' rights are, in the jargon, "inalienable". As the lawyer Alistair Kelman puts it, "you can no more sell your author's rights in what you create than you can (legally) sell your soul". You can, however, rent it for fair reward. This is what employment and work under contract are about - as contrasted with slavery, or being a feudal serf or peon!

The importance of authors' rights being inalienable comes from the relative economic power of publishers and creators. It's no good creators having any right if publishers can then say "sign it over to us if you want to work for us - or starve". This is essentially the argument which some UK publishers have used.

The argument for authors' rights is clearly in freelance creators' financial self-interest. We're not ashamed of that. We take pride in our work, and know that our future income depends entirely on its quality. That applies as much to the most ephemeral work - a computer program review or tennis match photo - as to work which obviously has a longer life.

No-one can tell, in any case, what works will have value in the future. As author Maureen Duffy of the ALCS puts it: "if in 1965 you'd asked any serious person whether the latest Beatles song would be listened to in thirty years' time, they would have said `of course not'. Now it is worth millions - to Michael Jackson."

Freelance creators believe - when we have time to think about such matters - that we are an important source of diversity in the media. (The nearest French term for "freelance" is "journalist(e) libre" - "free journalist".) Granted, we have to produce individual works to be acceptable to the publisher in question; but employed journalists (in the US and UK) are more likely permanently to take on the publisher's world- view, producing the same "angle" every day. Part of being a creative freelance is to see how far you can push the "envelope" of a publication's world-view. We would of course be very happy to see employees in the UK and US have authors' rights as they do in, say, France.

In the European Union, the issue between copyright and authors' rights will partly be settled by the process of "harmonisation". In the summer of 1995, the EU issued a Green Paper (Warning! 207kB!) for discussion on the issues.

The NUJ produced a brief response to the EU Green Paper. (We would appreciate copies of other organisations' responses.)

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What information "wants to be free"?

Many users of the internet see "copyright" as a threat to the free flow of information. Some take literally the slogan "information wants to be free".

Freelance creators have no wish to restrict "conversational" expression on the internet - after all, it can be a useful source of ideas and information for us! But we believe that distinctions must be drawn between:

  • Work done for free, to be put into the public domain but not to be exploited commercially. For example on the internet, most of those writing in Usenet newsgroups about how copyright is dead would be extremely annoyed to find that someone else had sold their words verbatim to a newspaper for cash - though they might be pleased to be quoted briefly, in context and with permission, as part of a well-researched piece.
  • Work done, for example, under a research grant from public money. High-quality, well-researched work takes time. Under US law, where that time is paid for out of public money, the resulting work is in the public domain. Most of those proposing that all works should be free seem to pay their rent from university salaries, student loans and grants, or by other work for which their writing or graphical work is an advertisement.
  • Work done as an independent commercial enterprise. High-quality, well-researched work done independently still takes time. If there is no way for independent creators to make an investment (of time, at least) in their work, and to have that investment repaid by offering it for sale, our culture is impoverished. If the only way they can have the investment repaid is by selling the work outright to Rupert Murdoch or Bill Gates - our culture is impoverished.

Each kind of work has its place.

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Collecting societies and registries

Traditionally, collecting societies have dealt almost entirely with "secondary rights" - payments to creators for re-use of their material through photocopying of text and photos, syndication of TV programmes, and so on. An International Federation of Journalists study shows that in 14 of 21 European countries surveyed there is some kind of collecting agency for writers, photographers, or both.

In some countries, payments are tracked wherever possible to individual creators. At present, this can require a great deal of human intervention - for example to deal with the case where several creators have the same name and payment is being forwarded from a country where none are well-matched to their works.

In "the Nordic model", payments for secondary rights are pooled to be applied by appropriate organisations for the benefit of creators in general.

The imminent advent of commercial pay-per-view electronic publishing opens up interesting possibilities for a descendant of the collecting society, dealing in primary rights.

Say you are reading that well-connected French electronic newspaper, Le Canard Branche&TM;. It offers you an article, warning you that to read it will cost you 0.04 European Currency Units. (You do not actually see this warning; you have instructed your computer program not to worry you about sums below 0.10 ECU.) Since the paper is legally published in France, its contributors have inalienable authors' rights. So, of the 0.04 ECU you pay, 0.015 ECU is due to the writer and 0.010 ECU to the photographer. (With 100,000 readers world-wide, that's 1500 ECU or about US$1875 to the writer, US$1250 to the photographer and US$1875 to the publisher.)

How does the money get credited? In the distant technological future - like five years from now - it may well be possible to credit it directly. The chances of publishers agreeing to do this are small.

However, the publisher can now, at essentially zero cost once it has done a little light computer programming, make a note of the credit to each creator. At the end of the month the publisher sends one cheque to each of the collecting societies representing its contributors, with a computer file specifying how much is for each individual. The collecting society then sends one cheque to each of its members, with a computer file specifying where the money came from.

Some re-publishers of expensive newspaper databases have during 1995 admitted that they maintain a log of access to individual articles. In these cases there is no barrier whatsoever to making "syndication" payments to the authors of these articles, immediately. Through a service like FT-Profile, readers (typically financial analysts) pay of the order of 6 - 10 ECU (US$7.50 - US$12.50) to read a single substantial article.

This development, like the "newspaper of the future", depends on some sort of "electronic money" by which readers/viewers can pay. The US National Writers Union in May 1995 produced a comprehensive position paper on this, and on the possibilities for independent self-publishing.

The other requirement for such a "micropayment" system is an accepted standard for identifying, within each electronically- distributed document (text, photo, sounds or film) at least:

  • who owns what rights in it;
  • what rights are available for a simple electronic payment and where that payment should be sent; and
  • how the owners should be approached for permision to make other uses of it.

These needs apply equally to the future of electronic newspapers, of academic journals, and of possible journalists' co-operatives.

It would be sensible, for reasons to do with the "internal politics of cyberspace", to incorporate these ownership "tags" with a scheme for authenticating the origin of documents.

Work on such standards is being done by the European-Union-funded IMPRIMATUR project, in which Britain's ALCS (Authors' Licensing and Collecting Society) is a leading partner.

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Legal challenges and "moral rights"

The "moral rights" clauses in UK law (the 1988 Copyright, Designs and Patents Act) and in US law (the 1976 Copyright Act, also available from Cornell University) were included as the minimum price of signing the Berne Convention.

Creators' organisations lobbied for proper, inalienable authors' rights. Publishers lobbied for as little change as possible.

The result in the UK law was that three "moral rights" were granted:

  • The right to be identified as author, and not to have other creators' work attributed to you. This is a watered-down form of the Authors' Right of "paternity".
  • The right to object to "derogatory treatment" of one's work. This is a watered-down form of the Authors' Right of "integrity".
  • A right of privacy for privately-commissioned photographs - for example wedding photos. This does not affect creators, except when an unscrupulous tabloid hack "borrows" such photos from the top of a disaster-victim's television...

The 1988 Act then immediately removes the first two rights for most useful purposes, for example:

81.-(1) The right conferred by section 80 (right to object to derogatory treatment of work) is subject to the following exceptions.

(2) The right does not apply to a computer program or to any computer-generated work.

(3) The right does not apply in relation to any work made for the purpose of reporting current events [my emphasis].

(4) The right does not apply to in relation to the publication in -

(a) a newspaper, magazine or similar periodical, or

(b) an encyclopaedia, dictionary, yearbook or other collective work of reference,

of a literary, dramatic, musical or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication.

Nor does the right apply in relation to any subsequent exploitation of such a work elsewhere without any modification of the published version.

{section continues...}

The Act also removes moral rights from any work done by an employee "in the course of their employment". It states that all rights - including property rights - in such work belong to the employer.

The immediate question is: does this meet the UK government's obligations under the Berne Convention?

In the US Act, Section 106A grants the rights of integrity and of attribution only to creators of works of visual art. The same question applies. There are also interesting questions over statements in the UN Convention on Human Rights about the rights of creators.

It's best not to discuss the detailed legal issues too publicly. Various people are discussing affordable ways of testing them in court. We would say to publishers, however: think very, very carefully before basing your business plans on law which may well be overturned in the courts. If it is overturned, you could find yourself with an enormous back-dated liability.

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This paper was written by Mike Holderness for the International Federation of Journalists Freelance conference in Amsterdam, December 1 to December 3 1995. The conference was supported by some European Union programme or other, which probably has a cute acronym.
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