In the wake of The Globe and Mail’s settlement with writers over its appropriation of their digital rights, there’s been some discussion of the actual state of newspaper contracts for digital uses of freelancer material.

The Globe now generally acknowledges creator copyright and seeks to licence one-time use in the print edition and “perpetual inclusion in the internal and commercially available databases and other storage media.”

CanWest’s terms are far harsher. Freelance writers are required to “irrevocably” surrender all rights to their work, including moral rights and 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.”

I have never heard this last part read aloud among writers without provoking real laugh-out-loud disbelief (”across the universe?”), but there it is.

One consequence: some significant number of professional writers simply avoid that chain entirely. Former staff writer Charles Gordon and automotive columnist Shannon Lee Mannion are mentioned among those who no longer write for The Citizen and CanWest, because of its freelance terms.

Surely this is not entirely unrelated to CanWest’s edge-of-bankruptyc financial difficulties and the plight of much mainstream journalism in general. Who will pay them for crap when there is so much crap available for free? If newspapers want to offer the good stuff, they will have to be prepared to pay for it.

Now, if we coud get the universities and educators to grasp that, too….

It’s one small story in The Globe, one large leap for digital culture. The Globe and Mail, after thirty years of appropriating and reselling the work of freelance writers without permission or payment, has admitted defeat and negotiated a settlement with the class action led by Heather Robertson.

Trying to make the best of it after years of stonewalling, Globe counsel Sue Gaudi says:

It is primarily a historical matter from the days before The Globe and Mail entered into written contracts with our freelance contributors. We value our relationships with our freelancers and are happy to move on.

It is much more than that. In a decade and more of fighting the freelancers’ claim to payment, The Globe’s lawyers insisted on a right to steal. Since they did not have permission to take what they wanted, they created a figleaf called “implied consent.” There would be no contracts, historically or going forward, if the court had supported this drivel.

With Google negotiating terms for sampling books online, with the Pirate Bay guys going to jail, with Kindle and iTunes and a million other systems demonstrating how access and rights co-exist in the digital world, that romantic moment when digital piracy seemed to be the wave of the future seems to be receding.

Congratulations to Heather Robertson and all her compadres; a difficult struggle, a remarkable victory. (Personal Note: I’m pretty sure I contributed nothing to The Globe in the period covered by the lawsuit and settlement and do not expect to be claiming a share of the long-delayed payment.)

Addendum: My extended take on this story from a couple of years ago here.

Not exactly a copyright issue, but there’s rights here, and it’s all a bit gobsmacking. Brings back the need for real State of the Artist legislation and not that fraud we got stuck with a couple of years ago.

CHAPMAN’S WON’T EMPLOY CHILDREN UNDER NATIONAL COMMERICAL AGREEMENT
Ontario government needs to legislate child protections, says ACTRA

Toronto – Ice cream giant Chapman’s is producing commercials in Toronto with child performers, potentially as young as four years old, while failing to adhere to the minimum terms and conditions of work that have been negotiated in the Canadian commercial industry’s National Commercial Agreement (NCA).

“This company generates millions of dollars targeting children to buy their products,” said Dan Mackenzie, a spokesperson for ACTRA Toronto. “It’s distressing that they can’t see fit to ensure that the child performers in their commercials receive the protections, wages and residual payments negotiated between ACTRA and Canada’s advertising industry representatives.”

Standard rates and conditions for all performers are part of the National Commercial Agreement (NCA) negotiated between ACTRA and the Institute of Communications and Advertising (ICA) and the Association of Canadian Advertisers (ACA). The ICA/ACA represents both advertising agencies and the companies that hire the agencies.

“ACTRA takes very seriously the need to protect children in the commercial industry,” stated Mackenzie. “Children are especially vulnerable to pressures from advertisers, agencies, producers, agents and parents. Doing commercials outside of the industry agreement means that producers are not bound to standards negotiated in the NCA for wages, safety, tutoring, nutrition and other rules that limit the hours and conditions under which children can work.

Employment legislation in Ontario has very little to say about children who work in the entertainment and commercial industry. That is one of the reasons high profile Canadian actors are leading ACTRA Toronto’s lobby of the Ontario government to bring in Status of the Artist legislation that would enshrine child work rules in law.

“Advertisers who do not want to adhere to the minimum terms and conditions of the NCA highlight are why it is so important that the Ontario government bring in strong and enforceable legislation to protect children in the commercial, film and television industries,” Mackenzie added.

ACTRA Toronto represents more than 15,000 professional performers. As an advocate for Canadian culture since 1943, ACTRA is a member-driven organization that continues to secure rights and respect for the work of Canada’s English-speaking performers in recorded media.
-30-

For more information:
Chris Faulkner ACTRA Toronto Public Relations Officer
P: 416.642.6710
E: cfaulkner@actratoronto.com

ALAI Canada (wierdly enough that’s the acronym for the Canadian Literary and Artistic Association) is hosting a discussion of the Google deal on Wednesday.
ALAI CANADA

Toronto Luncheon Meeting
Wednesday, April 22, 2009

WHITHER GOOGLE AND THE BOOK BUSINESS?
Speakers: Catherine A. Campbell, lawyer and publishing consultant
Christopher Moore, writer and historian
Date: Wednesday, April 22, 2009
Lunch: 12:00 pm
Program: 12:30 pm – 1:45 pm
Place: Access Copyright boardroom, Suite 800, One Yonge
Street, Toronto M5E 1E5
(Toronto Star building, one stop south of Union Station on the LRT)

Cost: Non-members - $35.00 Members - $25.00 Creators - $15.00

The topic for discussion is the settlement of a class action in the United States against Google, brought by authors (with the backing of the Authors’ Guild) for copyright infringement and a separate lawsuit brought by five American publishers, backed by the American Publishers Association, raising the same issues. Millions of copyright books including Canadian books found in U.S. libraries were digitized by Google without authorization from the rightsholders. The settlement agreement between the Authors Guild, the Association of American Publishers and Google is subject to a “fairness hearing” by a U.S. District Court (Southern New York) starting on June 11, 2009. The settlement has been criticized for pre-empting what is more appropriately dealt with by legislation and for being anti-competitive. Rightsholders may opt out of the settlement until May 5, 2009, but is there a benefit beyond maintaining their right to sue Google themselves? Those who don’t opt out can remove their books entirely from all servers up until April 5, 2011 and terminate specific commercial uses later at any time. The settlement will set up a Book Rights Registry in the U.S. to collect revenues from Google for commercial uses and pay rightsholders. Is this settlement good or bad for rightsholders, readers, researchers and libraries? Where do Canadian books fit into this? What are the ripple effects for copyright revision and the emerging e-book market in Canada?

Excellent news from The Electronic Rights Defence Committee of Montreal

After more than a decade, the Electronic Rights Defence Committee (ERDC) has received authorization from Quebec Superior Court to proceed with a class action suit against some of the biggest names in Canadian media.

At issue is electronic use without permission or compensation for work by freelance writers in The Montreal Gazette. The defendants are the Montreal Gazette Group, CanWest Global Communications, Hollinger Canadian Publishing Holdings, CanWest Interactive, Southam and Southam Business Communications, Infomart Dialog and Cedrom-SNI.

In February 2008, the Honourable Eva Petras, J.S.C., heard three days of arguments from Mireille Goulet - the ERDC lawyer, and a team of lawyers representing the defendants. The Justice’s decision was rendered March 31, 2009. It authorizes the ERDC to institute class action proceedings with writer and translator David Homel as its official designated member. The class action group includes all freelance writers whose articles, originally published in The Gazette, have been allegedly illegally reproduced on the Infomart data base since 1984.

The next steps will lead toward a trial on the merits of the case, a process which may take several years to reach a conclusion.

The ERDC case is one of several in North America seeking compensation for unauthorized electronic use of freelance writers’ work. In October 2007, the Canadian Supreme Court ruled five to four in the Heather Robertson vs. Thomson case that freelancers do indeed hold copyright on their work reproduced in electronic data bases. The US$ 18-million class action settlement in the United States which followed from the Tasini vs. New York Times case is currently before the US Supreme Court, which has agreed to decide whether a lower court has jurisdiction to approve settlement agreements. The Association des journalistes indépendants du Québec (AJIQ) is also currently in the process of undertaking a class action against several Quebec media providers.

For more information: Mary Soderstrom, ERDC president, 514 276-9257, David Homel, ERDC class representative, 514 288-6690 Link to judgment (in English) http://www.jugements.qc.ca/ (Search for Superior Court decisions in March 2009 (cour superieure, keyword: ERDC)

Ivor Tossell has some thoughtful coverage of the Google-Authors Guild settlement in today’s Globe & Mail entertainment. As he says:

What we’re looking at here isn’t, at the heart of things, yet another online effort to post free content and pay for it with ads. No, Google is using a somewhat older business model: offering a product, and asking people to pay for it. That marks one sensible retreat from the free-for-all world of tomorrow we’ve been promised all these years.

Ivor only goes thuddingly wrong once in the piece, when he declares copyright-holders were “nonplussed” by Google’s project. Actually, the copyright-holders were years ahead of the web gurus here. They were ready to licence their works to Google (or others); they just wanted to get paid proportionally to the value they were providing. It was clear for years (hell, I wrote about it years ago, and I was not the first) that licencing their content was the point of the authors’ lawsuit. That’s what Google has now conceded.

The only people nonplussed, I’d say, were experts like Lawrence Lessig and Tim Wu, who feared that a licencing deal between Google and rightsholders would undermine their everything-must-be-free-for-the-taking approach to digital content. The “sensible retreat” Ivor hails is what many creators have been promoting all along: access and licensing.

The television analogy seems to be looming larger and larger. When television was “free,” it was mostly that “vast wasteland.” Now people are actually prepared to pay for television, and hey, there’s some good stuff being made and offered. They say things move faster in the digital universe, so maybe we won’t wait fifty years for this one.

The Songwriters got lots of flak just over a year ago when they proposed a blanket licence at a nominal fee for downloading. But their ideas and the principles behind them seem to be gaining traction, even in unlikely quarters. Today Michael Geist gives grudging respect to the proposal in an essay published in The Tyee.

There are no links in Geist’s piece, but you can see the Songwriters proposal for yourself at their site here.

Update (Mar 25): Michael Geist points out he should not be considered an “unlikely” supporter, having “consistently supported the SAC’s efforts (even if disagreeing with elements of the proposal, some of which have now been addressed).” He invites us to look again at his posts on the SAC proposal:

http://www.michaelgeist.ca/content/view/2435/125/

http://www.michaelgeist.ca/content/view/2714/125/

The Writers’ Union recently released the following recommendation to its members:

WARNING

It has come to the attention of the Contracts Committee that a number of publishers have been launching electronic book and print-on-demand initiatives. These publishers are encouraging writers to participate in their projects and are offering royalties for e-book sales at rates from as low as 10% of net sale price.

The Contracts Committee thinks that 15% or 25% of net or even of retail is unacceptable.

The Committee’s additional concern is that these initiatives may lock up both your electronic and print rights for your book with the publisher more or less forever.

We strongly recommend that, right now, you do not sign new agreements, letter agreements or addenda to current publishing agreements that authorize e-books and p.o.d. without first consulting the TWUC office.

The Contracts Committee

*Thursday, March 26, 2009
* Speaker: Richard Owens*
* **_Who Says It’s Fair? The Politics of Fair Dealing and the Artist_*

This talk will examine the nature and extent of the right of fair dealing under the Copyright Act (Canada) and the debate on using the implementation of the World Intellectual Property Organization Copyright Treaty to radically enlarge fair dealing rights. Is any such enlargement justified, especially after the Supreme Court of Canada’s decision in CCH? The issues will be explored from the perspective of the creative artist and, in particular, with reference to photographers and their creations.

Date: Thursday, March 26, 2009
Lunch 12:00 pm
Program 12:30 pm – 1:45 pm
Place: Heenan Blaikie
Royal Bank Plaza, South Tower
23^rd Floor, 200 Bay Street
Toronto, ON
In the Terry Fox and Pearson Boardrooms
Cost: Non-members - $35.00 Members - $25.00 Creators - $15.00

For details email Rita [at] hebbsheffer.ca.

Attached: notice for a copyright conference in Toronto on Wednesday, March 18 that Olivia Chow is hosting. With Michael Geist, Charlie Angus, and a librarian on one side, can’t help thinking Stephen Waddell of ACTRA and Don Quarles of the Songwriters may set up for another one of those “balance means you give and we take” onslaughts here — but they’ll endure. (h/t to Slaw.)