Remote and Controlled
The National Writers Union (NWU) is the trade union for American freelance writers with 17 local chapters throughout the country and nearly 6,500 members nationwide. The goal of the union is to establish and enforce writers' rights. Recently, union President Jonathan Tasini won his latest battle against The New York Times Company in which the Supreme Court ruled freelancers must be compensated for content used digitally. In 1993, Tasini filed a copyright lawsuit on behalf of himself and members of the NWU, but eight years and one verdict later and publishers are just starting to feel the effects. In a statement by President and CEO of Magazine Publishers of America (MPA), Nina Link called the verdict a lose-lose situation. "It seems that everyone loses—publishers, students, researchers, readers and ironically, freelancers. Publishers lose because they will have to spend a tremendous amount of time and resources to purge freelance materials from their databases."
The New York Times has since reported that downsizing of its digital archives has begun. Similarly, The Philadelphia Inquirer recently reported that its Web site is also experiencing a subtractive diet. In both cases, content attributed to freelance writers from more than 10 years ago is being slashed because the publishers are often unable to contact authors and/or compensate them for thousands of records within both media company's arsenals. In many cases, the news organizations began asking for permission to publish the content from familiar freelancers, but admit its impossible (and expensive) to tackle each and every piece, resulting in outright removal of content rather than risk of lawsuits from hundreds and thousands of freelancers from around the world. The case is a catalyst toward how both content creators and publishers must reconcile digitization in a market once ruled by paper. As a result, mixed media repercussions are inspiring mixed reviews.
The initial response towards the Tasini case is cloudy at best. Publishers are aware that they are responsible for expensive retribution without non-staff writers' permission to publish content online, but freelancers are also faced with a conundrum to decide whether to relinquish their rights and ask to be additionally reimbursed, risking being purged from esteemed archives. In many cases, the pros and cons have established a new angle in which to view digital rights control. Not unlike the music industry's Napster, in which digital content was freely distributed without the permission of musical artists, NWU sustains that distribution of content created for print without permission to use on the Web is as much a violation. And while many freelance writers claim that the ruling establishes digital content's legitimacy, others disagree, saying that the ruling provides an even greater strain on an already over-worked industry.
ForeWord magazine's editor-at-large, Gene Schwartz, says that understanding the dichotomy between content creator and distributor is critical in understanding the future of digital rights management. "Although I have no way of validating the claim by publishers that they will have to remove a large number of items from the various data bases on which they reside, I believe that in this instance, the minority in the Tasini decision was on the reasonable side of where the new technology is taking us," says Schwartz. "I am a strong supporter of intellectual property rights and of rewarding authors to the full extent of a share in any revenues generated by their work product. New contracts are providing for electronic distribution so that the effect of this decision on the future will enable authors to negotiate for revenue shares in applications that were not feasible before digital and e-commerce technologies. I think one has to look at articles in magazines and newspapers in the context of how they originally found their way to market and achieved value not just through content but also through publication and distribution in association with a lot of other content. Publishers have a good case to make for wanting to acquire the material outright in the same way as they try to do graphics and designs." He says that tracking rights and payments for future access would have been more costly than the potential rewards.
At the same time, Schwartz admits that rights adhere to content and not necessarily format. "And while there are gray areas, I believe it is always ethically safe to go back to the analog practice for which the electronic form is a metaphor. There are numerous analogue metaphors—the clipping service is a good one, as are microfilm editions—which enable the user to separate out for their purposes a single article from its context, after coming upon it when it is stored in context," he explains. "The mechanics of setting up a clearing house as suggested by the authors are quite feasible now that we have the technologies of content management. Presumably, freelancers will be able to negotiate realistic outcomes on the strength of clearing house availability. The other realm in which this has significance—which I haven't personally thought through yet—but which I think is the most significant in the realm the public interest has to do with researchers, libraries and education."
Dan Brill, editor of the Canadian-based Graphics Exchange, disagrees. He frankly says, "I think it's ludicrous." Echoing what he describes as a Canadian perspective on content's inherent non-value, Brill explains that the concerns of freelancers should fall under collective copyright law. He predicts the Tasini verdict "will undoubtedly shut down a machine that has usefulness. It's similar to what happened in the fifth century when the Huns pillaged the great library in Constantinople—the freelancers are doing the same thing by demanding to be paid for something that is already governed by collective copyright law."
And while Brill acknowledges that the ruling will not affect his own publishing operations in Canada, he suspects that the decision will set a precedent he hopes that, if pressed, the Canadian courts will eventually overrule.
"The difference is that content is free," Brill explains. "Print still has value, but what [archives] are selling is the ability to do a search, not the content." Brill believes that freelance writers have no real stock in digital archives because while they may have contributed content, the content belongs to the publications under collective copyright that he says should be extended to digital assets. "That the judge says microfilm is different from a digital file is crazy," admits Brill. And even though he also says, "digital assets are infinitive; print is not," as a publisher, he defines content on a value scale. "Value equals content over relevancy, where Shakespeare's a one and anything to do with Timothy McVeigh is a zillion." Brill says, "It conveys to me that applying a value standard establishes both the same. I don't understand how an obituary written 10 years ago possibly has the same value as a news article."
But if freelancers now have powerful publishers in a position to pay for additional distribution of content, news librarians—the people behind the archives—will be charged will cleaning up for legal sake. Not only does this affect consumer use, but also staff research—everything from summarizing a lifetime of celebrity for the obituaries to exhuming yearly electoral college statistics. The standards by which readers, reporters and database solution providers operate will change since the Tasini case not only proved that digital assets are valuable, but that digital content is here to stay, though information may be limited based on funds. The decision also asks whether or not more staff writers will be expected to cover once-coveted freelance terrain or if publishers will, in fact, pay the price to go print-to-Web.
For the complete decision on New York Times Company v. Tasini, click here: http://www.usscplus.com/current/cases/ASCII/9910075.txt
-Natalie Hope McDonald