Sign here, in blood

[From ffwd weekly ]


by Brian Brennan

Canadian media pirates craft a Faustian pact with freelancers

When teenagers swap tunes over the Internet, the music industry cries foul and the daily newspapers characterize them as copyright pirates. Yet when Canadian freelance journalists have their intellectual property taken away from them, you don’t read about it in the daily press. Why? Because the pirates in this instance are the newspapers themselves.

Time was that whenever freelancers wrote stories for newspapers or magazines they granted the publishers the right to print the material only once. This allowed the freelancers to retain the copyright, sell the material to other publications or – as I have done with some of my freelance articles – re-publish the material in book form, and make a decent living from their words.

Now, some freelancers who write for CanWest Publications – the media giant that owns the Calgary Herald, Edmonton Journal, National Post and the major English-language dailies in most of Canada’s other large cities – find themselves in the invidious position of having to “irrevocably” surrender all rights to their work, including copyright, with no opportunity for reselling or republishing the material without CanWest’s “express written permission.” CanWest, on the other hand, asserts the right to “exclusively use and exploit” the material “in any manner and in any and all media, whether now known or hereafter devised, throughout the universe, in perpetuity.”

Throughout the universe? In perpetuity? When I first heard about this otherworldly contract, I thought it must be someone’s idea of a bad joke. I phoned a senior editor at the Herald to ask if it was for real and was told that newsroom management hadn’t seen the document. Neither had a senior editor at the Vancouver Sun. That settles it, I thought. The document is clearly a hoax.

However, then I received a call from Penney Kome, editor of the online publication Straight Goods, telling me she had talked to Geoffrey Elliott, vice-president of corporate affairs for CanWest. He had confirmed our worst fears; the contract was indeed a CanWest document. It wasn’t the only contract being used by CanWest – currently, it’s given only to freelance automotive writers – but it did reflect the company’s belief that it should be able to use the same freelance material across all its media platforms, which include websites, electronic databases, the CanWest Global television stations and its recently established book publishing division.

As well as appropriating the author’s copyright, the new CanWest contract also requires freelancers to waive what are known as “moral rights” – defined in law as the right to protect their work from distortion or mutilation. This allows CanWest to change an article in whatever manner it pleases–turn a lemon into a hot rod – and still put the freelancer’s name on top of the article.

Canadian writers’ organizations, representing more than 2,500 freelancers across the country, issued press releases condemning the contract when Kome posted a story about it on the Straight Goods website. The Writers’ Union of Canada, representing professional book writers, called the contract “a form of moral theft.” The Periodical Writers Association of Canada urged freelancers not to sign on CanWest’s dotted line. The Canadian Media Guild accused CanWest of “using its clout to gang up on the little guy.”

Not one daily newspaper in Canada reported the story of the freelancers’ protest. You can understand why the CanWest chain chose not to run anything, but why wouldn’t The Globe and Mail, for example, take advantage of an opportunity to poke its rival in the eye? Perhaps because the Globe has some troubles of its own with freelancers. The Ontario Court of Appeal ruled last month that the Globe violated Canada’s Copyright Act when it archived articles by freelancer Heather Robertson in its electronic databases without her permission. By so doing, the newspaper was able to resell the articles to anyone who wanted them for research purposes, while giving Robertson no additional compensation for her work. When freelancer Jonathan Tasini won a similar lawsuit against The New York Times in 2001, thousands of writers received compensation cheques for material stored in commercial databases without their permission.

CanWest’s Elliott told Kome that freelancers who don’t like the new contract “may choose not to write for CanWest.” But there’s the rub. CanWest owns 11 major metropolitan dailies, two smaller-market dailies, and more than 20 weeklies. That’s a big chunk of the potential freelance market in this country. For some freelancers, choosing not to write for CanWest would be akin to choosing not to eat.

Some of Canada’s top professional writers, doubtless prepared to risk having less grocery money, have already quietly withdrawn their services from CanWest, refusing to sign a rights-grabbing contract that restricts their ability to reuse or protect the integrity of the material they create. As readers, we all lose when this happens. There will always be plenty of lesser talents – hacks, hobbyists and axe grinders – ready to step in and take the place of the star writers now abandoning CanWest. But are these the people we want to see filling up the freelance columns of our country’s mainstream newspapers? I think not.

Seventeenth-century British pirates had a governing creed. In 1640, they banded themselves into a democratic fraternity and adopted a set of 14 commandments collectively titled “The Customs of the Brothers of the Coast.” It was signed by the entire ship’s company before every departure and served as the social contract of the expedition. Every decision of importance was discussed and a vote taken. A pirate ship was a well-ordered floating community.

Today’s media pirates could learn something from their British antecedents. If, instead of trying to impose rights-grabbing contracts on their freelancers, they were to sit down with the professional writers’ groups and devise an agreement recognizing what is already spelled out in Canada’s Copyright Act – that the author of a work owns the copyright and the right to protect the integrity of that work – they would make a lot of writers happy and spare themselves a lot of legal grief in the future.

(Brian Brennan is an author and freelance journalist. His latest book, Romancing the Rockies, will be published by Fifth House in the spring of 2005.)