Bit. Bit. Bit. The electronic pulse fires across the matrix, sending digit after digit down the gold and copper wire, to the server’s snaking cord and the fibre-optic cable that runs right out to the sea. Bit. Bit. Bit. The currency of information shoots around the earth and the value of the writer’s words increase with each electric shock. Bit. Bit. Bit.
“I don’t want to know about it. I just don’t want to know aaanything about it!” says freelance writer Heather Robertson. “I don’t want to know about the technology. I just want to be fairly paid.”
Robertson doesn’t want to know about the circuitry and programming behind the databases that hold her words. All she needs to know is that electronic versions of her work are being sold without her consent. It’s a situation she could never have predicted when she started writing 25 years ago. Like most freelancers, Robertson always thought the publisher’s verbal agreement or assignment letter bought first North American rights – and nothing more. In February 1996 she found out the truth. Her publisher, McClelland and Stewart, had sold The Thomson Corporation the right to use an excerpt from her book Driving Force in the October 1995 issue of Report on Business Magazine. As a freelancer for The Globe and Mail, she had also written several book reviews – reviews that she thought would be published once on paper and never again. But the use of those articles didn’t stop after the first publication: Thomson put the book excerpt and reviews onto its database, InfoGlobe, and people paid to read her work.
Robertson never saw any of that money. But she’s asking for it now. And with her $100-million class action lawsuit against The Thomson Corporation, Information Access Company, Thomson Canada Ltd. and its affiliates, Heather Robertson is fighting on behalf of freelance writers across Canada.
Sitting in the kitchen of her country home, Robertson seems a most unlikely hero for electronic rights. In her beaded moccasins and pale green sweat suit, she looks more like a model for Cottage Life than Wired. I, myself, am a Wired-girl. A Web-designing, C-programming, three-hours-a-day-on-the-Net kind of girl. So I’ve known about this database technology for awhile. But as a writer and computer geek, I’m starting to realize that I’m one of a rare new breed: a techno-literate content creator. Most writers didn’t think much about electronic formats when publishers first started using them 20 years ago.
Initially, publishers simply saw electronic databases as compact alternatives to filing cabinets, but it didn’t take long before the commercial possibilities became apparent. By the late 80’s, you could search thousands of articles in a matter of seconds by variables such as author, subject or title – as long as you paid for the privilege.
And there are so many ways to pay! Which would you prefer: an annual fee billed to your personal or business account, or a fee based on the amount of time spent on your search? Would you rather have a copy of the database sent to you annually on CD-ROM or access through a remote server? And what about special services, like having only the articles that interest you sent automatically by e-mail? But wait! There’s more! Why not access your favourite paper products on the World Wide Web, for “optimally repurposed material.” What? You say you’ve never heard of repurposed material? Why, it’s the latest thing. Just rip out the content of any old magazine or newspaper and shove it into an electronic format.
Yes, those ingenious publishers and database companies have found just about every way to make money from your information needs. And they can make even more money by licensing their material to companies such as Knight-Ridder Information, Inc., which sit at the top of the information food chain. Knight-Ridder is one of a few immense U.S. companies which own the computer systems used to search databases such as Southam’s Infomart Online. So Knight-Ridder gets its content from databases, databases get it from publishers, publishers get most of it from staff contributors – and the rest from poorly paid freelance writers.
So how does Knight-Ridder ensure that the publishers have the right to license the material they sell? “We really have no control over that,” says Susan Prather, senior manager of marketing communications at Knight-Ridder. “We simply have to assume that they have the right, or that they are at least being honest with us that they have the rights for redistribution.” Without that control, says Prather, Knight-Ridder simply can’t be held responsible. Besides, the bulk of the content on databases is created by magazine and newspaper staffers, whose copyright automatically reverts back to the publisher.
According to Canadian copyright law, the situation should be just as clear for freelancers. It stipulates that the copyright of any creation, be it a photograph, illustration or written work, belongs to the creator unless otherwise specified. But without a legal contract between the freelancer and publisher, not much has really been specified. And back then, Robertson didn’t see the need for any specification. Nobody did, because nobody took much notice of the new technology – except the publishers.
Freelance writers’ groups like the Periodical Writers’ Association of Canada (PWAC) certainly weren’t pressing the issue. John Mason, past national and Toronto-chapter president of PWAC, argues that during the last 10 years there was no way they could monitor what was going on because “the technology was such a barrier to entry.”
But it wasn’t just PWAC that let the issue slide. Robertson puts a lot of blame on CANCOPY, a non-profit organization that distributes xerography royalties to writers and publishers, for its own decade of inaction. “When CANCOPY started they said, ‘Once we get the photocopying under control then we’ll start worrying about electronic rights, so don’t worry,'” she says. “And so everybody went to sleep, only to wake up and find that CANCOPY had done absolutely nothing on electronic rights. Zero. Zip.”
And that’s probably the most you’re going to get out of CANCOPY in terms of electronic royalties, at least as long as Lucy White is associate director. “It’s a primary rights issue and CANCOPY deals with secondary rights,” says White. “If a writer has sold print rights only to The Globe and Mail or nay other periodical and then that periodical takes it and does something else with it, such as putting it on an electronic format, it’s not a secondary use of the print work – it’s a first-time electronic rights issue. And it’s not CANCOPY’s issue.” So it comes down to a case of semantics. Most writers think of their e-rights as secondary because they’re sold in addition to their first North American print rights. CANCOPY sees it as a primary right because it’s the first time the articles have been used in an electronic format.
Regardless of their reasons, the silence of PWAC and CANCOPY inadvertently let publishers like the Globe continue databasing their consent unabated. And that gave publishers years to establish their own idea of an industry standard, which they use as a part of their defence. “The company’s position has been that we’ve been doing this for almost 20 years and now all of a sudden there are objections,” says Earle Gill, executive editor at the Globe. “Our understanding was that when we bought the thing, we bought the right to publish it. And ‘publishing’ these days means any number of things, whether on paper or electronically.”
But Robertson didn’t know that until, as she puts it, all the “hoo-ha” started.
The hoo-ha came largely in the form of a PWAC educational campaign. In the spring of 1995, the writers’ group searched about two dozen commercial databases for the by-lines of 21 members. Mason was shocked by what he considers an abuse of copyright law. “We found something like 1,700 hits of our members’ work, and 79 percent of the content was there without the permission of the copyright holder,” he says. “Not one penny of this revenue was getting back to any of these 21 people.”
PWAC’s campaign prompted Robertson to launch her own search, so she asked the Metropolitan Toronto Reference Library to check InfoGlobe for her work. They found the excerpt from Report on BusinessMagazine, along with a bunch of her book reviews. Robertson didn’t immediately opt for a lawsuit. Initially, she tried to negotiate something with the Globe. First there was an exchange of letters between Thomson and McClelland and Stewart, but that went nowhere. Then there were more letters – this time from her attorney. What Robertson got back, she says, was a “Piss-Off-And-Die letter from one of Thomson’s lawyers.” By June 1996, she had met with lawyer Michael McGowan to file her class action lawsuit and set some legal precedent regarding electronic rights.
The members of PWAC’s executive had already begun their own pressure campaign against various publishers and editors. They wrote letters, made phone calls and created a PWAC web site to express their discontent over the unpaid electronic use of their work. They were aided by a small ad hoc group called Concerned Writers, which started its own education campaign. In response to the pressure, publishers hastily drew up contracts – most of them specifying that freelancers give over their electronic rights for no additional payment.
PWAC tried negotiating the terms on these new contracts, but with little initial success. Mason’s important first meeting with Gill was rather uneventful. “He listened, he nodded and he was able to go back to his masters saying that he had consulted with the creators,” says Mason of Gill’s actions that day. But while it appeared that publishers just weren’t taking PWAC and its demands seriously, PWAC’s executives were partially to blame. Gill asked them to get back to him by April of 1994 and that never happened.
“We dropped the ball. He didn’t hear back from us, so he didn’t know what the opposition’s stand was,” admits Mason. So the Globewent ahead with another draft of the contract, followed by another round of unproductive negotiations with the two writers’ groups.
Under pressure from the writers, many other publishers have drawn up new contracts, some of which acknowledge freelancers’ concerns. But these contracts can still be confusing. For instance, MacLean Hunter Publishing Limited’s latest contract lumps electronic database rights into the “basic rights” category, but leaves online rights (for things like the Chatelaine ConnectsWeb site) in the scope of “additional rights.” And while Chatelaineoffers a token payment of $10 to $30 for the online use of any article over 500 words, payment for use in a database is a little more complicated and a lot more ambiguous.
When I asked Ivor Shapiro, then managing editor of Chatelaine, if his magazine pays for database rights, he said that it’s a part of the blanket fee. But when I asked him how much of that actually pays for database rights, I didn’t really get an answer. What I got was Shapiro’s house metaphor:
“When you buy a house you do not pay separately for the broadloom, curtains, dishwasher and refrigerator. You specify in a blanket sale agreement that all the above are included in the negotiated price. Does this mean you are grabbing or stealing the broadloom? Of course not. In the same way, Chatelaine negotiates a fee to cover all the permissions it needs – including the one that has by far the greatest value: first print rights.
This system is confusing enough on its own. But what aggravates the situation is that each publisher, and often each magazine, has taken a slightly different position on the electronic rights issue. On the one hand, The Financial Postdemands non-exclusive world-wide rights for varying periods of time, depending on the type of article. Canadian Gardeningmagazine, on the other hand, offered Robertson an additional 10 percent fee for an additional one-year license to reproduce an article on their Web site.
Even amid this commotion, PWAC has made some small victories with individual publications and publishers. Telemedia Communications Inc. backed down on its initial electronic rights grab and the Globe has finally begun to give in, offering an additional three percent of the initial fee for electronic rights. It may be only a small amount of money, but it represents a growing trend of publishers acknowledging a monetary value for electronic rights.
What that value is, exactly, remains unclear. Shapiro says that less than one percent of MacLean Hunter’s profits comes from its electronic ventures and that it’s simply a case of market economics setting the value of electronic rights at a low level. Hence publishers like MacLean Hunter follow the invisible hand of the free market and pay for electronic rights at a rate that ranges from nothing to negligible. When I bring up this argument with Prather from Knight-Ridder, she laughs. “Oh my Lord! We’ve been in this business for 25 years. Yes, indeed, we make a lot of money and the people who provide us with the information make money. Or they wouldn’t do it,” she says.
It is quite possible that both Prather and Shapiro are correct – that while Knight-Ridder gets lots of money from electronic databases, they’re not a profit-maker for Chatelaine. Perhaps it would be better if freelancers were well-paid for their contributions and market evolution took its course, as Shapiro suggests, only this time letting the financially weak companies die off and drop out of the information industry.
Jim Carroll, freelancer and co-author of the Canadian Internet Handbook, says he simply doesn’t care whether the databases are making a profit. He stopped writing for Computing Canadatwo years ago, when he discovered his work was being used without his permission. The magazine tried to force Carroll into a contract that would legally sign over his electronic rights to the publisher. He spreads the word about electronic rights through Concerned Writers, his radio show, NetTalk, and any opportunity he can find to speak to the public. “My articles are being sold by them with no recompense to me. That is fundamentally, legally and morally wrong. That is like saying it’s okay to go out and mug somebody in the street because we don’t find any money in their pocket.”
Database companies such as InfoGlobe argue that even if they were making money, their limited technology simply could not ensure that some of the new media profits went to the freelancer. “The database we’ve got is still the original software, which is 20 years old. It’s not exactly cutting edge. It can’t even tell you what somebody looked at. All it knows is that Customer A signed on at 8:03 and signed off at 8:07,” says Gill. I could see this reasoning going over well in a room full of computer-illiterate writers, but I know better. I’m tempted to tell Gill that this is simply not a complex programming task. Even I could fix it.