So much for first rights; Transcon contract means publisher holds all the cards

There are people in the magazine business who think that freelancers are a bunch of whiners, particularly about money. But it is difficult not to see the freelance writer's point of view when looking at the contractual terms and conditions being imposed by Canada's largest publisher of consumer magazines.

Recently, a copy of the Transcontinental Media Author-Publisher Master Agreement came into our hands and we were startled to see how far the trend is accelerating towards paying less and less for more and more. Effectively, the concept of a freelancer selling "first publication rights" and retaining control over where and how work is published is being dispensed with.

The language of the contract gives Transcon control over the disposition of an article for a year beyond publication.

Notwithstanding Section 1.1 [which says after first publication the Publisher's rights become non-exclusive] the Publisher’s right to publish the Work shall remain exclusive for a period of twelve (12) months following first publication.

For its article fee, the company demands the exclusive rights to publish the article anytime within two years (!) and re-use of the article in any of Transcon's many online portals (15 such portals are listed on its website), in any form and without compensation. If the article is translated or put in another magazine or published in a "paper format special issue", the writer will be paid 10% of the original fee -- but the company reserves up to three months for payment. An explanatory note in the contract says:

For example, if you write an article about breast cancer, we can include your Work in the paper format issue of a publication, in the publication’s website as well as in any material that promotes a publication or the Publisher as a company; we can also include your Work in another website owned or operated by the Publisher about some other subject such as women’s health.

In addition, the agreement provides the right, within 12 months of publication, to match the fee offered by a competing magazine "in order to prevent the Work from being sold to and/or published by a third party."

Of course, freelancers don't have to sign such an agreement or sell their work. But when a company controls some of Canada's largest and best-known national magazines and therefore the best freelance markets, particularly women's service titles such as More, Canadian Living and Homemaker's, this is not a very sensible alternative.

It should also be noted that most experienced freelancers value their relationships with particular editors and magazines and don't have a problem with a publisher requiring options on reuse of work -- but they do want to be paid a reasonable fee for it.

We asked David Hayes, a veteran and highly respected freelance writer what he thought and this is what he said:

Talented freelancer writers are soon going to be an endangered species. True, a few who are valuable (and aggressive) enough drive their rate up, but in general many Canadian magazine publishers pay rates to their writers that are roughly the same as they were 30 years ago while paying for every other conceivable operating cost in 2008 dollars. And when asked about it, they smile wanly, and say, “Well, we just can’t afford to pay freelance writers any more.” When the truth is, they do it because they can get away with it. No wonder the resentment is approaching the boiling point.