Thursday, October 01, 2009

Transcontinental contract is misunderstood, says senior executive

[This post has been updated]

[UPDATE: In a conversation with Canadian Magazines, Pierre Marcoux, Transcontinental's vice-president of business solutions and book publishing said that the company was surprised by the press release and the suggestion of a boycott.
"We received this communication [the press release] the same as everybody else and we were suprised that 12 groups had joined with the Canadian Writers Group and PWAC, especially since we've never talked to them."
A more complete precis of the conversation is included below*.]

Freelance writers have misunderstood the Transcontinental master agreement, according to Pierre Marcoux, the vice-president of business solutions and book publishing. He told the Montreal Gazette that writers retain the copyright to their work, and Transcontinental pays them a fee each time the work is reused in paper form at other publications, he said.
But writers will not be paid if the work is republished on different media of the same brand, for instance on Canadian Living magazine,, or a Canadian Living iPhone app.

''The media environment has changed and is changing fast," Marcoux said. "Our brands are required to live across different platforms."

He added that 80 per cent of the company's freelancers in Quebec have signed the contract, along with 60 per cent of those in Ontario.

[UPDATE: *A conversation with Pierre Marcoux:

Pierre Marcoux says when it met with Derek Finkle of the Canadian Writers Group and with David Johnston of PWAC in July, it was Transcontinental's goal only to explain the terms of the contract.
"Our intention has never been to negotiate the contract, but to clarify. We think it is a good, coherent and fair contract. We don't see it as a rights grab. It clarifies the rights we now have with writers and clarifies copyright."
He said that after Transcon exercised its negotiated first rights, the author retains copyright, although it is no longer exclusive.
"What we have is a subsequent right to use the work, but only in association with the brand that first published it. We've even defined what that includes -- web, mobile, radio or TV shows." He said he didn't want to over-emphasize radio and TV since this wasn't an area Transcon is into currently, but the provision was intended to ensure that any such arrangement was "manageable".
"Where we can reuse an article or content is on digital platforms. We see our business as a business of brands. It has to be clear that [the contract] only applies to use in association with the same brands." He added that Transcon is somewhat unusual in that it pays for use in translation, in special-interest publications, in books. "Not all publishers do that in French and English, pay for translations, but we do it because we think it's fair."
He said that writers who have concerns about the contract should talk to the editor or publisher with whom they normally deal. He said that any writer who did not want to sign the master agreement could continue to sign contracts with Transcon on an article-by-article basis (though he pointed out that the intention of the master agreement was to avoid unnecessary paperwork for both company and freeelancer.) He added that Transcontinental is considering what further public response it will make to the CWG/PWAC statement.
"We looked at a lot of other contracts [in the business] when we were drawing this up and while this may not be the best, it is certainly not the worst, " he said]
Related posts:

Labels: ,


Anonymous Anonymous said...

if 60% plus are signed then what is this campaign for?
So Derek and the other groups can justify their fees?

12:11 pm  
Anonymous Anonymous said...

Guess it depends on whether you believe the person who wants you to sign the contract that they've actually signed up 60% of their writers.

12:52 pm  
Anonymous Anonymous said...

Marcoux is full of crap. If he wanted to negotiate web and reprint rights only, he MAY have had an easier time of it.

But he also wants your moral rights, plus the ability for Transcon -- or anyone they decide -- to use your work at any time. And good luck trying to interest a book publisher in that great feature you did for a Transcon mag; you don't even fully own your own copyright, so why would any reputable publisher buy it?

“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.”

This garbage may float in Quebec, where they have long treated their writers like serfs. It shouldn't here.

12:58 pm  
Anonymous Kim Pittaway said...

Some clarifications on Transcon's clarification:
* the contract does specify that they will pay for some additional print uses--at 10% of the original rate, which is way below what most writers get for second rights (I've always gotten at least 30% and sometimes as much as equal to the original rate)
* the "non-exclusive" right is a smokescreen: as long as Transcon has the right to use the content, exclusively or non-exclusively, the value to other possible buyers is $0, because other buyers don't want to purchase something that someone else may also use. It's like saying to a property owner (that would be the writer) "I'm going to rent your house for a month and pay you one month's rent. After that, I'm going to continue to have a non-exclusive right to use the apartment without paying you anything extra--but you can rent it to someone else because you still own it." What other renter is going to pay to rent that apartment if the former tenant can come and go at will? Transcon essentially becomes a co-owner of the work.
* The option to sign the contact on a piece by piece basis is marginally better than signing it once and forever only if there's the possibility for the writer to negotiate a better contract somewhere down the line. If the Trancon line is that this is the contract and we're sticking to it, signing it for one piece or for all really makes no difference.
* I can't speak for other writers, but as for myself: I'm not opposed to selling these additional rights. But the key term is "selling." If Transcon wants these rights, I will happily sell them for an additional fee.

Up the rates, get more rights. It's a pretty simple equation. Take more rights, don't up the rates: that, my friends, makes it a rights grab, no matter how you want to "clarify" it.

It's a marketplace. Transcon has the right to try to get more. And writers who value their work have the right to decline to sell that work to Transcon under these terms. That's what many of us are doing. It's a shame, because I enjoy the work I've done for More and Homemaker's and other Transcon titles in the past. I have great working relationships with their terrific editors. But this contract, at the existing rate, is unreasonable. And unless the rate goes up or the rights requested diminish, I won't be writing for them.

1:07 pm  
Blogger Angela West said...

Let's not forget that you don't get paid if you don't sign the contract; this is why most writers have signed it. I know one writer that objected to the contract but signed it anyway because they wanted their cheque for an article they had already written, go figure.

1:16 pm  
Anonymous Anonymous said...

Kim, that's a good summary but there's more to it than that. A contract generally spells out responsibilities of the two parties; this makes no mention of what Transcon's responsibilities are.

Are they bound to pay a kill fee? If so, how much and under what circumstances?

Will they pay for the writer's defense in a libel action?

Pay upon acceptance? Terms?

This is not a contract. It's a handgun.

1:28 pm  
Anonymous Anonymous said...

The truth is that Marcoux doesn't understand his own contract. Yes, it says that the writer retains copyright ownership to the work. However, this copyright is undercut by the clause that gives Transcon "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."

That basically amounts to Transcon's own non-exclusive, parallel copyright of the work, that, in turn, makes the writer's copyright non-exclusive. Isn't the point of copyright that it's supposed to be exclusive? This is the reason why several big literary agencies are also participating in this boycott. How are you supposed to get a publisher to invest tens of thousands of dollars in a writer's book when Transcon essentially has its own copyright, with which it can publish its own books or produce its own movies etc. Sorry, but Transcon isn't paying its writers enough to warrant those rights.

Further, Transcon pubs, in this new contract, are offering 10% of the basic fee should the work get either a) translated, b) published in a paper format special issue, or c) published in a paper format book. First, this isn't anything to brag about. Second, If its writers maintained copyright and Transcon didn't have their own non-exclusive parallel copyright, then writers would be able to either negotiate the fees for such uses or have the right to turn them down.

It's hilarious that companies like Transcontinental and Rogers want to have the work live across many platforms while paying the same rate that used to cover a single platform - in 1985. Try calling Rogers to order cable TV and see if they'll throw in a mobile phone package and wireless internet for free.

1:36 pm  
Anonymous Anonymous said...

Am I the only one here who's like, WTF: the content dates fast, most it won't be relevant in a couple years let alone worthy of a book treatment???

Can Transcon have rights that I currently don't use anyway at no additional cost? Sure, I don't care.

I'm more than happy to get a check for $50 for a story I wrote 2 years earlier that gets picked up by another Transcon title--why not? I got paid for that story already anyway, and am too busy working on other stories to try to re-sell 2nd or 3rd rights to it.

And if they want to use it across platforms for the same imprint,free of charge, that's more page clicks, more future assignments to me, so cool: why not?

Writing is a relatively easy gig, it pays well for what it is (may not be corporate-law rates, but it's not cubicle-serf rates either), and this is a pretty lame thing to get up in arms over.

But I am sure that as a PR ploy, it helps Finkle et al justify their fees.

1:39 pm  
Blogger Angela West said...

The "fees" for PWAC hardly qualify as fees. I spend more at Starbucks.

My main beef with the contract is the failure to pay for digital rights. Transcontinental makes money on the content twice; once through monetization in their publication, the second time through monetization on their website. Writers should be paid whenever Transcontinental is getting paid, and this contract doesn't allow for that.

I honestly don't care if a one-off producer (i.e. a real estate company producing a newsletter) buys both web & print rights in one shot, but a large media company like Transcontinental will repackage and resell that content across their various websites and brands, which include newspapers. Where they make money, you should make money.

1:47 pm  
Anonymous Anonymous said...

Kim PIttaway said:

"* the "non-exclusive" right is a smokescreen: as long as Transcon has the right to use the content, exclusively or non-exclusively, the value to other possible buyers is $0, because other buyers don't want to purchase something that someone else may also use."

Not quite. Are you saying that you never sell non-exclusive second rights? I do, all the time. The buyers purchase the right to use the work once (in an anthology, say), but do not demand anything beyond the right to run it. I can sell it simultaneously to a competitor if I want -- so that's far from $0. (Plus, I don't think your analogy necessarily holds water, but that's for another day.)

If you're talking about a book publishing deal or selling the idea as a feature film or documentary script, though, you're absolutely correct: under Transcon's agreement, there is no value there at all.

That said, even when it comes to selling reprint rights, Transcon's contract is poison. First, it would make it unlikely that you would ever know that anyone is even looking to purchase your second rights. In my experience, the potential buyer of the second rights usually approaches the magazine in the FIRST place and asks if they, or the writer, owns the copyright. Under this contract, the rights are essentially co-owned; why would Transcon give them your contact numbers when their contract allows them to make the sale themselves?

Many of you think that your editors -- let's face it, they're often our friends -- would simply pass the request along to you, as a favour. That's a lot to take on faith, especially now.

1:49 pm  
Anonymous Anonymous said...

It's amazing to me that Anonymous "WTF" doesn't care if Transcon generates more income from his/her work without additional remuneration but has a hate on for "Finkle et al" for charging rates for work or services they actually provide. WTF, Anon WTF?

1:53 pm  
Anonymous Anonymous said...

So, wait, is Marcoux saying that he was quite happy to tell PWAC and CWG to go and get bent, but now that he's discovered there's another dozen groups behind them, this might have changed his rather cavalier dismissal of the concerns expressed in the first place? If that's the case, he sure doesn't come off looking all that good. What would he now say to the other twelve organizations? "Oh, now that you guys are on board, that changes everything! Why didn't you let me know how you felt before?" I hope they have a gold for most disingenuous commentary at next year's NMAs, because this one would be a lock.

10:47 pm  
Blogger scribe said...

A Transcon publication used to pay me an additional fee equal to 10% of my original fee for the right to use my article on their web site. I thought it was a fair arrangement. Then they suddenly stopped doing so. When I queried them why, I was told they were under orders to cut costs and this was one of the easiest steps to take because freelance writers wouldn't object because if they did they would not be offered any other assignments.

11:43 am  
Anonymous Anonymous said...

I'm boycotting them.

4:16 pm  

Post a Comment

Subscribe to Post Comments [Atom]

<< Home