The conflict over copyright is heating up--and this time it's global
Trade Minister Kim Howells, speaking at an international "authors' rights summit" organised by the NUJ, says he'll be a "broker" between the union and the BBC over copyright. And the Daily Mail is writing to its freelances: "Dear contributor: You retain copyright."
Associated Newspapers has clearly recognised how important this issue is to freelances, and the BBC has not. But Associated continues by asserting that it will have rights to use work "in all the media formats which we publish (now or in the future)." And syndication rights. And database and online rights.
The NUJ's copyright consultant Carol Lee has had many queries about these letters from Mail contributors - not a group who you'd normally think of as avid trades unionists. The letters have also gone to Evening Standard contributors. Both the Financial Times and the Economist have recently demanded that contributors assign all rights in their work.
"If those old-style letters demanding assignment were like the publishers demanding the freehold of your house for the price of a month's rent," comments Tim Dawson, chair of the unions' Freelance Industrial Council, "these new ones are demanding a 999-year lease."
The union's response to "the dissembling nature of these letters", Lee says, is "don't sign". The NUJ is contacting its 6000 freelance members with detailed advice.
Traditionally, when a freelance sells words or pictures to a paper what they sell is a license to use the work once. If the story took off worldwide, freelance writers and photographers got half the proceeds of selling it on.
But in the mid-eighties, UK newspapers struck deals to transfer their copy in bulk to closed databases like Nexis and FT Profile. After that, of course, came the world-wide web, and the imperative for every paper to make its presence felt in cyberspace.
Small problem: if freelances were granting one-time licenses, the papers didn't have the right to re-use their work like this. A decade later, the Spring of 1995 was marked by a downpour of letters from publishers containing scary phrases like "all rights... throughout the universe... in media yet to be invented."
In the UK, the NUJ encouraged freelances to resist. In the USA--for the phenomenon was and is as worldwide as the networks that cause it--the National Writers' Union went to court. Six members of the union of freelances, including its president Jonathan Tasini, sued the New York Times, database company MEAD and others for re-using their work without permission. They lost, with the judge accepting the Times argument that it is "a collective work" under a clause in US law designed to make dictionary publishing feasible.
In September, the NWU won on appeal. One publishing insider describes the current spate of rights-grabs as "the payback for Tasini-v-Times".
Meanwhile in joined-up Europe, publishers have an even bigger headache. There, as in the mainstream of international law, there is no copyright strictly speaking. Authors' Rights are rights of the individual, not property rights, and so they cannot be transferred. They are rooted in the author's rights to be identified and to defend the integrity of work against manipulation. These are rather misleadingly called "Moral Rights" in English.
In a string of cases brought by the French Syndicat National des Journalistes, publishers also claimed that newspapers are "collective works". Following an appeal court decision against Figaro in May, the SNJ's unbroken run of victories in the lower courts looks secure. Newspapers in France must negotiate with journalists over new Web editions.
And, in France as in most of the non-English-speaking world, that includes staff journalists. Authors' rights apply to everyone. They are even enshrined in the United Nations Declaration of Human Rights: "Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author." (For legal purposes, journalism is literature.)
In the UK, the 1988 Copyright Act excludes moral rights in anything done for a newspaper or magazine, anything reporting current affairs, and anything done by an employee. All the same, both the Financial Times and the Economist ask contributors to waive these rights. This is more than a lawyers' laundry-list approach to covering all bases, possibilities and eventualities. They, like every publication with an internet edition, are distributed everywhere. They face the worrying possibility that a freelance whose copy was edited badly at the last minute without consultation might sue in, say, Brussels--and win.
What is at stake here, unions around the world say in a string of papers and pamphlets, is the relationship between citizens and the news in the new media age. New technology makes it very easy to alter words and pictures on the fly. Is the authenticity of what a reader sees on the screen best guaranteed by the publisher--or by the individual journalist? The Freelance newsletter, announcing the authors' rights summit on June 12-14, asked what the public might think of "Bill Gates and Rupert Murdoch owning the first draft of history outright--with the right to change it."
The summit at the British Library drew representatives from unions in 30 countries. It concluded that proper authors' rights in the English-speaking world are essential to them defending their members' rights everywhere--and that the campaign indeed needs to be taken up with the public.
The NUJ's progress towards an agreement with the Guardian had already attracted attention abroad. Managing editor Chris Elliot said the paper was keen to get back on the side of the good guys. Under the proposed agreement, freelances will keep ownership of their work--and it supports their moral rights.
NUJ General Secretary John Foster appealed to the international delegates to apply pressure on the BBC. Particularly given European debate about public service broadcasting and the license fee, letters expressing concern at its rights grab would hold Greg Dyke's full attention. DTI Minister Kim Howells spoke encouragingly. His concrete promise was that he would act as broker to bring the unions and the BBC to the table on the issue.
But business moves faster than international trade union conferences. Journalists around the world, however, are now using the networks to organise as rapidly. Dawson points to the success of photographers on Business Age, who managed to double their rates after they organised electronically to challenge unpaid web use, as an example of how "e-mail changes the dynamics of this dispute."
The stakes are high. "Intellectual property," says Mark Getty, scion of the oil family and owner of the Getty photo archive, "is the oil of the twenty-first century". Foster concluded the conference: "In the NUJ, authors' rights used to be a freelance issue. Now we know it is an issue for all journalists including staff, and beyond that for all creators and ultimately for the whole of society."
Mike Holderness is a freelance writer and consultant on new media policy
© 2000 Mike Holderness; moral rights asserted.