While journalists around the world celebrated a new US Supreme Court ruling - that publishers cannot re-distribute work in electronic form without the author's permission - the UK's National Union of Journalists (NUJ) warned that the law was being circumvented in ever-more imaginative ways by large media companies.
Even a new European Parliament Directive, which also re-affirms the author's copyright on re-distributed material and must be ratified by all member states before the end of December 2002, will not protect journalists' rights, according to the NUJ's Freelance Industrial Council chair, Tim Dawson.
"There is no question that large publishing companies are getting much wiser to the whole copyright issue," he told dotJournalism. "They are sending out "rights grab" letters to contributors. These effectively tell you that if you agree to write for them, you are giving them the right to redistribute your work in any media without having to pay you any extra fees. Journalists who ignore these letters could forfeit their copyright because it could be argued that by taking no action they are agreeing to the terms.
"This 'implied licence' argument also works in other areas, too. If you write for a magazine knowing that they put your stories on their website without paying you extra, the magazine could argue that because you have not challenged them you have given them an implied license to redistribute your work."
However, he added that several members of the government had indicated their support for freelancers on the issue, and that long-term change was possible if journalists remained vigilant and challenged publishers.
After the US Supreme Court judgment, which pitted the New York Times against a group of freelance journalists, the newspaper group announced that it would pull all relevant stories from its electronic archives. Other media groups followed suit, showing little inclination to negotiate re-use fees.
Jonathan Tasini, president of the National Writers Union which brought the law suit, said: "We have urged leaders of the media industry to sit down and negotiate a fair resolution, which would build on the comprehensive system the National Writers Union has already set up for compensating writers for electronic re-uses of their work.
"Instead, The New York Times and Time Inc., to cite two examples, have quickly declared that they will delete freelance articles from archives. Such a step is a direct snub of the United States Supreme Court. Deleting the articles today will not wash away the significant liabilities facing publishers from years of infringement. Only sensible negotiations can lead to a resolution that is fair to all parties."
And not all journalists were celebrating. Eric Alterman, MSNBC contributer, warned that the judgment could spell disaster for freelancers in the longer term.
"I would gladly forgo whatever tiny cheques to which I am entitled to prevent the companies from deleting everyone else's articles from their databases for fear of compensation.
"I benefit, at least indirectly, from the availability of my own work online, where others can cite it in their work, thereby increasing my 'brand recognition' as a writer. Companies are now demanding all kinds of contractual rights to a writer's work that they never owned before. I recently agreed to sell reprint rights to articles I had written for The New York Times Book Review and The New Yorker - for nothing in the first case and about 30 bucks in the latter. If I had said no, they would have been just as happy to exclude my work from their collection. What would I have gained?"
Meanwhile, the European Federation of Journalists has pledged it will campaign vigorously to make sure the European Union Copyright Directive does not get 'watered down' during implementation.
Links: www.ifj.org, www.msnbc.com/news, www.mediachannel.org.
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