It is almost always alarming and dispiriting when a settled system, like a marriage, is disrupted. I have been reading a legal textbook that deserves the widest possible circulation because it addresses the issues involved in just such a breakup -- the relationship between magazine publishers and their freelance suppliers.
The author of Copyright, Contracts, Creators: New Media, New Rules is Giuseppina D'Agostino, an associate professor at the Osgoode Hall Law School at York University and the founding director of IP Osgoode.
As I say, the longstanding system for assigning and paying freelance writers is broken, at least from the perspective of freelancers (and, I would argue, from thoughtful publishers, too); so far nothing good is taking its place.
Freelancers are all-but despairing about the trend to blanket, all-rights contracts being imposed by big, multi-title publishers such as Transcontinental Media and Rogers Publishing, without commensurate additional compensation -- what is characterized as a "rights grab". Publishers, on the other hand, see the future of digital publishing lies in control of copyright and the ability to repurpose and re-sell material they commission, so they appear to be resolute in their strategy. They do so even in the face of resistance by more seasoned freelancers because publishers take the view that there is a glut of hopefuls willing to accept the terms to take their place.
While D'Agostino's book casts a wider net than the smallish world of Canadian magazines -- indeed takes a trip around the world of freelancer-publisher relations -- much of what she outlines and the solutions she suggests should be read by every freelancer, agency, editor and publishers (both independents and those inside our Canada's largest media conglomerates.)
This is unquestionably an academic textbook and therefore not the easiest going, what with the scholarly approach, extensive footnotes, table of legal cases and bibliography. But it repays the effort because D'Agostsino's writing is quite sprightly and she resists the tempation to be mealy-mouthed and obscure about the issues.
It is clear from her introduction, conclusion and body of the book that she is sympathetic to the plight of freelancers in a digital age and that she's not at all sure that it's in the long-term best interests of the business and publishers to ignore that plight or ride roughshod over freelancers just because they can. They want to be the primary rights holders and exploiters and if this means using their power to cut freelancers out of the loop, so be it.
The book evaluates the adequacy of current copyright law by taking an historical look back and looking at the experiences in the U.S. and various European countries to see how they differ in their approach and how much they share with Canada's experience. She says that the copyright matrix is shot through with ambiguity and confusion. As she says in her introduction:
"I argue that copyright law, which purported to address the needs of the author through protection of works and thus to create incentives to produce and bolster societal well-being, has insufficiently met these objectives."
D'Agostino goes into some detail about a pivotal case whose results resonate in Canada. The so-called "Tasini Case" involved six freelance writers, led by National Writers Union president John Tasini, sued three publishers, including the New York Times, Newsday Inc. and Time Inc.
The dispute centred on 21 articles written by the freelancers between 1990 and 1993, in which they had registered copyright. Without explicit permission of the writers, the publishers had sold licenses to the articles to third-party databases. The outcome was a majority decision of the Supreme Court that essentially took the side of the freelancers.
In many of the most important ways, the dispute paralleled the drawn-out Robertson case in Canada, a class action led by Heather Robertson (Robertson vs. Thomson Corp et al) taking on most of Canada's publishers for doing essentially the same thing as in Tasini. However in Canada, D'Agostino points out, the Supreme Court, while finding for Robertson on the issue of copyright infringement, shied away from pronouncing on the central issue of licensing.
"And so the majority opinion," she says, "seemingly more sympathetic to freelancers, acknowledges that it has not even begun to scratch the surface of the real issue: had freelancers implied a wish to give away their digital rights in the first place?"
D'Agostino suggests that what is needed are "equilibrated solutions", saying that such solutions need to work through some combination of legislative intervention, education, collective action by freelancers, stronger agreement in the industry about best practices and a voluntary code. "I have often argued," she says, "change is often necessary where it is most resisted." She says that the scales have been tipped too far, too long in favour of the publishers:
"There was a time, at least rhetorically, when publishers and authors were thought to be in a 'joint adventure'. Certainly such a concept no longer figures in the caselaw, let alone current publishing practices, which yield more of a freelancer-publisher misadventure."
She also says that while what is assigned or licensed is basically a matter of negotiation, freelancers are seldom in a position to negotiate favourable terms. In another context, this would be referred to as "lack of leverage".
" Freelancers, especially in the common law, remain short-changed by national copyright legislation."
In all the blather and emotion of this situation, it is good to have some hard facts, some in-depth review and some well-reasoned argument brought together in one tidy package. While painting a somewhat gloomy picture in part D'Agostino has gone to some trouble to suggest that there is no need to accept the status quo, which isn't working very well for the writers or the public and, arguably, for publishers.
While people may be put off by the price of the book ($116.96 ordered online from the publisher-- not uncommon for a legal text -- and also available as an e-book) it is good value for money.
Copyright, Contracts, Creators: New Media, New Rules
by Giuseppina D'Agostino, Edward Elgar, 2010.