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Battle Rages Over Electronic Publishing Rights

By Mark Leger

Freelance writers should be encouraged by the phenomenal growth of electronic publishing over the past year. New medium means new opportunities for cash-strapped writers. Wrong. At least for now. There are few on-line publications that are willing to pay for original content. And newspapers and magazines that reprint freelance articles on the World Wide Web, on-line databases, and CD-ROMs have no intention of paying freelancers extra for this right until it becomes profitable.

This last fact has outraged freelancers, and over the last year groups like the Periodical Writers Association of Canada (PWAC) have been lobbying publishers to pay them for reprinted work. They say publishers are guilty of copyright infringement if they don't. Staff writers at Canadian magazines and newspapers don't own copyright over their work. Freelancers, however, do own the rights to their material and after they publish an article in one paper or magazine, they have the right to re-sell it to another media outlet.

Electronic publishing rights wasn't an issue until last year. And until groups like PWAC started to kick up a fuss, most publications just assumed that they were buying those rights as well. For a few years now, several publications have been available on CD-ROMs such as Canadian Newsdisk, and on-line databases such as InfoGlobe and Infomart. Many newspapers and magazines, including The Globe and Mail and Saturday Night, now have World Wide Web sites. Freelancers haven't received a dime for any of their articles reprinted in any of these forms.

In the time since electronic copyright has become an issue, freelancers and media outlets have been trying to negotiate contracts that are amenable to everyone involved. That has proved to be a difficult, if not impossible, task. The Globe released a contract last Fall which asked freelancers to give up all copyright. They withdrew this contract under protest from the freelance community. In the next contract, they offered first print rights, which mean that they would continue to pay extra if a piece was used in print again. But they still insisted on free electronic rights so they could include freelancer's work in their commercial database at no extra cost to the paper.

Southam's contract asks freelancers to give up print and electronic copyright. If a freelancer does a piece for the Gazette, the company wants to able to reprint it free in other Southam papers like the Edmonton Journal. It also wants the right to publish it on CD-ROM and for its on-line database InfoMart at no extra cost.

Publishers insist they're are not trying to short change the freelance community. They say they can't pay them for electronic rights because they say they are not making any money themselves from electronic ventures.

Gordon Fisher, vice-president of editorial at Southam, says his company has spent at least $75 million dollars on electronic publishing ventures and have made "absolutely no profits" so far.

"The reality is we're engaged in R & D in this area to stay competitive," says Fisher. "All of our competitors are involved and we're going to stay and see if it becomes (profitable)."

Ruth Biderman, the executive director of PWAC, says Fisher's rationale is false. "They pay their staff. They pay their rent," says Biderman. "They're new business ventures. They can't refuse to pay their suppliers." Hence, she concludes, they must pay writers as well.

PWAC is asking freelancers to refuse to write for publications that ask them to give up copyright on their work. This is going to be a difficult pill for writers to swallow in a shrinking and competitive market. In Quebec, writers are signing a Telemedia contract relinquishing copyright because they simply can't afford to take a stand and still expect to earn a living.

"It's a personal decision," says Biderman of the dilema writers find themselves in. "Each person has to decide whether they can afford to stand up for what's right." And many people, she says, have learned to live with less in the effort to make the publications pay them for their work.

Freelancers have the right to sue a publication for breach of copyright. In the U.S. writers have launched several lawsuits against American publications, and, in some cases, successfully won the right to be paid for work reprinted in an electronic form. The New York-based National Writers Union is currently in the midst of a copyright suit against several U.S. news outlets, including the New York Times and Newsweek. Late in April 12 freelancers launched a suit against the Montreal Gazette.

Freelancers are also concerned about potential copyright violation by television programs and has taken their fight to the Canadian Radio-television and Telecommunications Commission (CRTC). On April 16, PWAC asked the Commission to make sure applicants for new cable channels pay freelancers a fair wage. The organization singled out Report on Business Television, MONEY, Southam Headline News, and Outdoor Life. Electronic rights include broadcasting rights, hence it's possible freelancers won't be paid extra if their printed material is used on one of these channels.

Most media outlets can't predict when electronic publishing will become profitable. On the World Wide Web, it's difficult to build a subscriber base because users have gotten used to free access to most sites. USA Today tried a couple of years ago to charge by the hour for access to its site, but they were only able to attract about 1,000 subscribers and soon dropped the fee. And for a variety of reasons, attracting advertisers has proved equally difficult. Fisher promises that when, and if, Southam's electronic businesses become profitable, freelancers won't be left out in the cold "When our electronic ventures have advertisers and subscribers, and we are bringing in money," he says, "freelancers will get more money for their work based on the size of our profits."

Biderman doesn't believe Fisher. She says publishers will try to get away with paying freelancers nothing even when they begin to reap huge profits.

"If they can take the (articles) for free now," she says, "why would they pay later."

See also:
A Copyright Tutorial
Electronic Rights (and Wrongs)
CANCOPY and photocopying
If It's Worth Publishing, It's Worth Paying For
Permissions and documentation: When not to worry


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