4th December 2002
Have the publishers acquired the rights necessary for Internet publishing from their employees?
In the Danish Authors' Rights Act there is no provision regulating the transfer of rights of use of works created during employment (except in the case of computer programs).
Where the contract or collective agreement does not say otherwise, the courts have concluded that the contracting parties have presumed that the employer within his or her field of activities has ac-quired the rights of use that are necessary to fulfil this purpose.
Most collective agreements between the Danish Union of Journalists (DJ) and our media counter-parts in the printed press do not mention authors rights and do not specify to what extent the rights of use are transferred to the company.
Collective agreements on parallel publishing on Internet and archive function
When newspapers and magazines began to establish websites as a parallel publishing activity it be-came necessary for DJ to decide whether or not to claim that this activity was within or without the normal field of activities of the publisher and thus whether or not the rights of use for this purpose should be seen as having been transferred to the publisher through tacit agreement.
In the opinion of DJ there was a not ignorable risk that the union would lose a court case if it claimed that a identical version published digitally within a time pass connected to the printed ver-sion was outside "the normal field of activities".
Instead of claiming extra remuneration for the rights necessary for this activity we asked for collec-tive local agreements in which the newspaper or magazine accepted to treat the digital publishing activity under the same editorial leadership and rules as the printed version and to inform the public given access to the newspaper in digital form of the limitations in use (only see, read and copy for purely private purpose).
The next step came, when the newspapers and magazines wanted to let the material be continuously available in an archive function online. With great difficulty a collective agreement was reached with the Danish Newspaper Publishers Association, licensing the making available of the newspa-per content outside of the limited timeframe of the publishing that is parallel with the printed ver-sion. The publishers pay remuneration for this use, but only a symbolic amount (500 Dkr. per year per employee). The users are only allowed to see, read and copy for purely private purposes.
Other further uses
Republishing or reuse outside this scope must be licensed through agreements with the employees in question either through local agreements or agreements between DJ and the publishers. 96% of the daily newspapers have supplementary collective agreements giving them the rights necessary for a large number of other activities. The content creators (journalists, photographers etc.) receive remuneration in relation to the uses in question.
The newest of these agreements (with the Berlingske Officin A/S (3 major newspapers and a num-ber of smaller regional and local) give the employees 1.000 Dkr. (about 130 Euro) a month as a continuous "lump sum" payment for various Internet use and syndication within the company pub-lications.
On behalf of DJ freelances the union has been able get a number of collective agreements with magazines and journals that give freelances 12,5% extra on top of their normal fee if the material is to be published simultaneously on Internet. A collective agreement with magazines published by labour unions a fee per hour has been set that includes payment for Internet publishing and making the material available afterwards in an online archive.
Outside these areas freelances are having a hard time getting paid for these uses. It is no problem winning court cases when digital publishing is done without consent. The difficulty lies in getting the freelances to refrain from giving their consent without being paid.
InfoMedia (a new private media company offering press clippings etc.)
Three of the major Danish newspapers have established a new company "InfoMedia". It is an in-formation archive consisting of many newspapers, magazines etc. in Denmark and it offers its cus-tomers "press clippings" and articles on demand.
DJ is in the middle of negotiations, court cases etc. in order to secure our employed and freelance members remuneration for these uses.
At two of the three owner newspapers we have established that making the newspaper archive available for InfoMedia is further use and the same goes for making press clippings and articles available on demand. Negotiations will take place in order to raise the amount paid per month for further uses.
During the next month all newspapers and magazines that have made their archives available for InfoMedia will be contacted with demands for local agreements. The shop stewards will ask for 50% of the amount paid by InfoMedia to the newspaper or magazine in question for uses "sold" from the archive. Two agreements of this nature have already been concluded.
The freelance situation is more difficult. We are trying very hard to get a collective agreement for freelances at Berlingske Officin A/S. In case we do not succeed we intend to forbid all freelance members of DJ to work for Berlingske unless they are paid adequately for digital uses, including uses through Infomedia.
When DJ issues this blockade notice there is no doubt that Berlingske will go to the competition authorities and claim that the blockade is illegal. This is an issue that already is pending at the com-petition appeal court. In the first instance DJ won the right to use collective labour law when trying to win collective agreements for the freelances working as a buffer work force around the media companies.
Two court cases are on their way against newspapers who have made freelances articles available through InfoMedia without the express consent of the freelances.
We are giving the freelances advice on pricing (information on our web-page, material, courses, telephone counselling etc.)
A special task force has been established to follow up on all these activities.
Press clippings and collective rights management societies
Even if things go well, journalists (and photographers etc.) will experience much lower remunera-tion from press clippings than before when companies entered into photocopying agreements with Copy-Dan.
To diminish this loss and to secure a future for collective rights management we are fighting hard to get the Danish parliament to alter the clause on extended collective licensing on photocopying for information purposes in private and public companies so that it also covers digital copying. Until now - unfortunately - the effort has been without success.
As we all know the newspaper publishers are fighting hard to keep digital rights out of collective management both at the national and at the international level. The IFJ/EFJ fights the international battle in IFRRO as is apparent from the minutes of the meeting in the press clippings group that took place during the annual meeting in October 2002.
Companies such as Newsbooster who offer "press clippings" through a combination of robotting and distribution of newsletters with deep links violate the rights of both publishers and authors. For this reason DJ has entered into a case of court injunction against Newsbooster in support of the Danish Newspaper Association. When this case is concluded DJ will consider bringing independent claims on behalf of the individual journalists to court.
In the meantime Newsbooster has moved its activities from Denmark.
Anne Louise Schelin, Danish Union of Journalists (DJ)
Further information: Anne Louise Schelin, [email protected]