Freelancers dismayed by Transcon's new "take it or leave it" freelance contract

When Transcontinental Media, Canada's largest producer of consumer magazines, rolls out a revised freeelance contract, it is news. Freelancers pay attention: those who already work for one of Transcon's large magazines like Canadian Living, More, Homemakers, Outdoor Canada and Hockey News; and those who hope to. [Copy of the contract form dowloadable here]

That's why there is so much, justifiable, dismay that the company's new contract so aggressively demonstrates the imbalance of clout between the independent small businesses who supply that content and a large, multinational corporation.

Of course, Transcon might say that freelancers have an option -- they don't have to sign the agreement. But clearly this is unrealistic, particularly for long-established freelancers who have developed a good working relationship with Transcon titles.

A similar, but somewhat less demanding contract was unveiled a year ago: it reserved the right to republish any article within two years and gave the company exclusive rights on an article for 12 months. It also contained a provision 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."

Now, say freelancers, this revised contract, dated June 2009, is shorter, not containing those provisions, but is even more sweeping in controlling writers' work. And there is no indication that base fees will increase to reflect the changes.

The shame of it is that Transcon is essentially not negotiating supplier fees and conditions, but dictating them. For the freelance writers it is a matter of take it or leave it. If they don't sign the master agreement, which applies to all magazines, they won't be able to work with any Transcon publications:

The Publisher’s accounting department will not process payment for your Work(s) unless your invoice is preceded by a signed Master Agreement. Should your invoice conflict with this Master Agreement, the terms of this Master Agreement will prevail.

The new contract does makes some provision for small additional fees for some uses -- 10% of the basic fee if the work is translated; 10% if the work is published in a special issue; 10% if the work is included in a paper format book; 15% if the work is published in another Transcon-branded product.

But the operative clause is a significant rights grab that, in effect, indentures the writer and their work to Transcon. Here, under the heading "Rights granted" is the wording:

1. In consideration of the basic fee agreed upon at the time each Work is commissioned and subject to Section 3 (Additional Fees) where applicable, you grant to the Publisher the following rights in association with a Brand:

1.1 the right to first publication of the Work and subsequent ongoing non-exclusive right to publish the Work;

1.2 the ongoing non-exclusive right to do in respect of the Work any other act that is subject to copyright protection under the Canadian Copyright Act (including, without limitation, the right to produce and reproduce, translate, develop ancillary products, perform in public, adapt and communicate the Work, in any form or medium) as well as to authorize others to do so on behalf of or in association with the Publisher;

1.3 the ongoing non-exclusive right to edit and otherwise reasonably modify the Work.

2. You acknowledge that all rights granted herein are applicable to all media (including, without limitation, all digital and electronic media now known or hereafter created) and also includes the Publisher’s ongoing non-exclusive right to archive the Work (including in digital databases and abstracting/indexing services) and to make the archived Work available to the public, either directly by the Publisher or through third parties.

Despite the nod to the copyright act, the contract makes a nonsense of creators' rights and makes second rights a non sequitur. What client would pay for second rights on an article if Transcon retained the (albeit "non-exclusive") right to republish the article in virtually any form or publication at any time? And the writer is effectively delegating to Transcon the right to change their article in any which way.

"It's like asking me to build you a house, renting it for month and then saying, okay go ahead and rent it to someone else, but I want the right to pop back in whenever I feel like--and I might redecorate or move some walls," said writer Kim Pittaway.

Derek Finkle, who recently launched the Canadian Writers Group agency to represent, among others, freelance magazine writers, told Masthead:

"I don't understand why companies that sell their products on multiple platforms for a fee think writers should be giving away usage in multiple formats for free," Derek Finkle, founder and principal of CWG.

The contract, Finkle says, muddies the copyright waters, which could spoil an author's potential to score a book or film deal based on something written for a Transcontinental magazine or website. Even worse, he says, "theoretically, Transcontinental could sell TV or film rights and the writer wouldn't see a dime."

The Professional Writers of Canada (PWAC) is expected to have a formal statement about the contract soon. Whether protests will deflect the company or cause it to reconsider a document that essentially turns its private contractors into serfs remains to be seen. What puzzles many in the industry is what is driving this? In other words, what's wrong with the current system of rights and payments?

Perhaps inadvertently, Transcon has shone a light one of the many reasons why some of Canada's most experienced freelancers have signed with Derek Finkle's new agency.