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,
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
Since November 1994 publishers in the US and the UK have launched
a sustained attack on freelance contributors'
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
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."
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
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]
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
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
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
- 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.
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
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-
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
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'
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
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
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
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
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
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
ASMP Photographers' Project
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,
Typically, this initiative seems to have originated from the hard
work of working creators (Matt!) rather than from their
ASJA Contracts Watch
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
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.
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
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
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 NUJ produced a brief response to
the EU Green Paper. (We would appreciate
copies of other
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
Each kind of work has its place.
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
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
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
position paper on this, and on the possibilities for independent
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
Work on such standards is being done by the European-Union-funded
IMPRIMATUR project, in which Britain's
(Authors' Licensing and Collecting Society) is a leading partner.
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
were included as the minimum price of signing the Berne
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
- 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
This is a watered-down form of the Authors' Right of
- 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
(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.
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
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
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.