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EVERYONE whose articles have been reproduced in online databases should consider whether to file for compensation. As reported last issue, the deadline for sending off your claim to join the proposed settlement of a US class action against 13 database companies and up to 2000 magazines, journals and newspapers is 30 September. That for opting out is 12 September.

But the proposal is surrounded by controversy. As far as the Freelance can discover, the negotiations took no account of the situation of writers outside the US and Canada, though the 84-page agreement does explicitly say we can join. Separate actions by groups of Canadian writers may recover much more for them than it offers for all English-language writers, worldwide.

Writers who registered their work with the US Copyright Office definitely stand to gain. The proposed settlement offers them US$1500 for each of their first 15 works for any one publisher. That's "Category A". Those who registered after the work was illegally distributed online but before 31 December 2002 are in "Category B" and are offered the greater of $150 or 12.5 per cent of what they were paid by the publisher.

This form of registration of copyrights is unique to the US. There, it is a requirement in order to claim statutory damages for abuse of copyright, rather than having to prove actual loss. But international law says that all authors shall hold copyright "without formality". In some cases US law recognises that non-US authors must be treated as though we have registered. But that's not what the agreement says.

Everyone who has not registered is in "Category C". They are offered up to $60 for articles "originally sold for $3000 or more", down to $5 for each article originally licensed for $50 or less. All claimants must supply a list of articles. And, of course, none of this applies to articles in which writers assigned rights to publishers - nor to photographers.

The total settlement is capped at $18 million, from which legal fees and administration costs will be deducted. If the total of claims exceeds what's left, Category C payments will be cut first.

Claimants accepting the full offer grant the database companies a perpetual worldwide licence to re-use their work in future. The Freelance notes that they are currently selling access to articles for $3 and more, per view. Writers who choose instead to keep their articles out of the databases will receive 65 per cent of the amount they would otherwise have had.

A final court hearing on the fairness of the agreement is due on 27 September. Your deadline for posting or electronic filing of claims is 30 September. Irv Muchnick, who used to be copyright consultant to the US National Writers' Union and strongly opposes the settlement, says it claims that publishers will have the right to go on selling articles by people who don't register or explicitly opt out. Yor deadline for opting out is 12 September.


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