Part II: Sectoral Issues (continued)

Writing

The Canadian writing community is perhaps the most diverse of all the creator groups, and encompasses novelists, non-fiction writers, academics, children’s authors, journalists, and poets (playwrights and screenwriters have been discussed above). In the latter category, contracts come from a range of sources: magazines, newspapers, websites, corporate and government communications contracts, speech-writing, ghost-writing, newsletters, and in-house publications. Another set of published work is produced by teachers or instructors who write – either on their own or in collaboration – textbooks or teaching materials. As with most other creator communities, there’s great diversity in the amount of income generated from writing – from poets who earn tiny stipends from literary publishers to those freelancers who generate lucrative fees from steady corporate contracts.

In addition to the above-mentioned guilds, freelance writers may (or may not) belong to a range of organizations, some of which are certified by CAPPRT, and some of which aren’t. In most (although not all) large media organizations, writers and editors belong to a union (e.g., Southern Ontario Newspaper Guild, the Communication Energy and Paperworkers).

Academics who publish books or journal articles belong to formally constituted faculty associations, and draw their salaries from universities or colleges. Similarly, teachers who write textbooks may belong to their own professional unions. But these organizations tend not to be oriented towards copyright issues or creators’ rights; indeed, faculty unions have a history of participating in anti-copyright activism by universities.

Several membership-driven organizations exist to represent the much larger non-unionized segment of the writing community, although they focus on a range of activities from political advocacy to professional development. The Writers’ Union of Canada is predominantly comprised of book writers.

The Periodical Writers Association of Canada represents some, but not all, magazine and newspaper writers, and a large number of writers making their livelihood from specialized corporate, government and non-fiction book writing. There’s also the League of Canadian Poets, the Canadian Science Writers Association, the Canadian Association of Journalists, the Canadian Author’s Association, provincial writers’ organizations, and CANSCAIP, a networking organization for individuals who write and illustrate children’s books. PEN Canada, part of the international Poets, Essayists and Novelists network, represents published authors concerned about domestic freedom of expression issues, refugee writers and the persecution of international writers. Canadian Journalists for Freedom of Expression (CJFE) plays a similar role.

In terms of copyright, there’s a spectrum of practices. In Canada, reporters, except in specific cases, are salaried employees (these include those who write for media web sites) who cede copyright to their employers as part of the employment contract, except in very specific circumstances (e.g., authorship of a major series). Similarly, text book publishers are only willing to pay academics and teachers who contribute to textbooks on a piece-work basis, and they hold no rights in the overall work. (Teachers who write entire textbooks do receive royalties, of course.) For the most part, academics and teachers who write earn their living from their day jobs.

For trade book authors, copyright conditions are subject to long-standing and fairly stable practices in the book industry, and these are enshrined within contracts negotiated between writer and publisher. The publisher buys exclusive book rights based on an advance against earnings. Then the two sides negotiate a royalty scale and a range of secondary rights that depend heavily on the project and the bargaining power of the author. Rights usually revert to the author when the book goes out of print, and authors are rarely entitled to any royalties from the sale of remaindered copies. Authors don’t benefit from the sale of used books. Some writers will retain international rights, while others will have these included in the initial contract. There are also rights related to adapting a work into audiovisual format and merchandise spin-offs. These are usually retained by the author. It is impossible to generalize about what authors earn from their books, as the combination of advances and royalty income runs the gamut from a few hundred dollars for a small print-run chap book to millions for a mass market bestseller.

The contrast between textbooks and trade books is worth noting. For the latter, creators’ earnings reflect market conditions. Because copyrights are respected, the more successful a work is, the larger the creator’s income is. With textbooks, there’s no direct connection between a creator’s contribution and the commercial viability of a given title, which raises a key point: if textbook publishers operating in Canada actually heeded the copyrights of their authors (which is what they are demanding of consumers when these firms pursue legal action against copyshops, etc.), there would be a thriving freelance textbook writing community, and perhaps better quality texts as a result.

Magazine freelancers generally sell first publication rights, although in some cases (e.g., with assignments for some professional associations, corporations, government), they surrender copyright entirely. But in general, freelancers have been able to reserve secondary publication rights, allowing them to re-sell their work to other publications or organizations that wish to re-print articles for some internal purpose. As is well-known, freelance rates have remained largely stagnant for many years, typically ranging from about 40-cents to $2 per word in Canada. Reprint fees vary: the benchmark rate is about a third to one half of the original fee, but the final payment depends heavily on the freelancer’s negotiating skills, the intended circulation of the reprint, and their motivation to extract a fee. Non-profit groups commonly seek permission to re-print articles for advocacy purposes, but they frequently refuse to pay, citing lack of resources.

Lastly, Canadian writers have access to two other income sources deriving from their work. One is the Public Lending Right, a federally-administered program which makes payments to Canadian writers who have published at least one book. It exists as a program of the federal government to compensate authors for the circulation of their works in public libraries, but isn’t a benefit of copyright per se. The second is Access Copyright, a much broader collective society that negotiates blanket reprography licenses with educational institutions, libraries, governments and other organizations. Using rates based for the most part on sampling and to a lesser extent on record keeping by licensees, Access Copyright distributes revenue from licensing among both creators and publishers based on formulas negotiated by the creators and publishers associations represented on its board.

The rapid evolution of digital media have had a complex impact on writers, and this impact depends heavily on what they write, and the media in which they publish.

Magazines and Newspapers

In the mid-1990s, freelance writers experienced what can best be described as a wave of panic among magazine publishers concerned about the prospect of creating parallel publications online. Reacting to both the advent of media websites and the Heather Robertson class action against Thomson Corp., almost all publishers asked their freelance contributors to sign contracts which required them to waive electronic rights to their articles in perpetuity, often for little or no compensation (5% of the original fee is typical, and this formula fails to recognize the added value inherent in the electronic rights). These contracts stood in sharp contrast to highly informal relationships between writers and magazines that had customarily acquired only first publication rights. As has been widely reported, lawyers for some large media companies drew up contracts demanding that freelancers hand over a wide assortment of rights, and then presented them to writers on a take-it-or-leave basis.

In some cases, writers who refused to sign are blacklisted. One Alberta freelancer recalls pitching a column to the Globe and Mail. She was sent a contract that stipulated that her article can be archived indefinitely. The writer struck out the clause, signed the contract and returned it, only to be told she couldn’t do the column. Such experiences underscore the point that certain types of creators – freelance writers in this instance – lack bargaining power and are therefore forced to accept disadvantageous deals.

“There was a sense that you didn’t work for the Globe unless you signed this contract,” says a former Globe magazine editor, now a writer. Initially, the editorial staff adopted a casual attitude, and some resented forcing their contributors to accept these agreements. Eventually, the newspaper’s management made it clear that no one could contribute without a signed contract. While a number of freelancers opted to boycott the Globe, many other didn’t. “Most writers didn’t have an issue, because the Globe was paying well enough that [the contract] made sense.” In any case, they couldn’t afford to turn down the opportunity to write for one of Canada’s pre-eminent publications.

For PWAC and many freelancers, this “rights grab” has several dimensions. One involved moral rights: because the contracts were so broad, freelancers would lose the ability to control changes to their work. Another involved the retention of rights. These contracts shifted the rules by forcing writers to surrender various rights that they could exploit by re-selling articles into other markets. Lastly, those contracts – because they entailed such a nominal fee for web use – didn’t allow freelancers to share in the advertising and e-commerce revenue generated by the content on media websites. Moreover, the contracts appeared to pave the way for media firms with several mastheads to “re-purpose” articles without paying the author for these re-uses. As a 1996 PWAC income survey of its members showed, the average freelancer earned $26,000, with only $16,000 derived from the Canadian periodical market. Fees paid by mainstream Canadian magazines haven’t risen appreciably since the 1970s.

Nearly a decade later, the controversy over these contracts has subsided to some extent with some notable exceptions of large media companies continuing to test the industry's tolerance for rights-grabbing contracts (e.g., a 2004 version of the CanWest freelance contract, which included a provision that the “Freelancer hereby irrevocably grants and assigns to CanWest all rights of every kind in and to the Content (including copyright), and agrees that CanWest shall have the right to exclusively use and exploit the Content in any manner and in any and all media, whether now known or hereafter devised, throughout the universe, in perpetuity.”

Some writers have discovered that, with the passage of time, publishers are somewhat more willing to negotiate terms. What’s more, the magazine industry, though highly concentrated and vulnerable to newsstand competition from U.S. publications, has proven to be resilient, with the arrival of many new periodicals expanding the market for freelancers. Moreover, the anticipated mass migration of magazine readers to the Internet did not occur. Many, but not all, magazines now publish some kind of an online version of their content or are tied to a portal or business-to-business site. These sites generate some revenue through advertising, subscriptions or e-commerce, and, as with music, provide consumers with a sample that may translate into hardcopy sales or subscriptions. In the general interest sector, the websites appear not to have undermined the paper versions.

The Internet has, however, facilitated a tremendous amount of unauthorized digital copying of magazine and newspaper articles written both by freelancers (who usually hold copyright) and staff reporters (who, in most cases, don’t). HTML or PDF files of relevant articles -- or links to them -- can be found on a proliferation of websites maintained by corporations, advocacy organizations, government institutions, even politicians. In other cases, writers have discovered other articles posted online which contain lengthy segments of their own work included without credit.

The sheer magnitude of this practice of unauthorized postings – presents further proof that many Internet users, including those working for government agencies, regard online material as free for the taking. Of course, magazine and newspaper articles are routinely photocopied for various purposes – sometimes with authorization, sometimes not. In the past, it was not uncommon for companies or organizations to contact writers to seek permission to reproduce an article for marketing, education or advocacy purposes. Such inquiries often generated some kind of reprint fee, depending on the organization’s wherewithal and the negotiating skills of the writer.

Although there’s no hard data, it would appear that such reprint requests to the writer are in decline, while website postings are very much on the rise. With paper reproductions, of course, it was nearly impossible for writers to determine whether copies of their articles were being made by an organization for the various purposes cited above. Some groups are diligent about obtaining permissions, and others don’t bother.

In the era of “ego-surfing,” it’s become far easier for writers to determine whether organizations or companies are posting their material on websites without permission. But this ‘trackability’ doesn’t necessarily translate into extra revenue. Occasionally, an organization or a company, when contacted, will agree to pay a reprint fee, thus recognizing copyright. The more typical response is the removal of the article. This reaction is also an implicit recognition of the writer’s copyright. It remains to be seen whether copyright collectives can develop systems to track unauthorized Internet posting on behalf of writers who assign such organizations the right to authorize digital reproductions of their work.

Databases

The related issue has to do with proprietary electronic databases, which may include a great deal of material produced by freelancers. The ultimate outcome of the Robertson case will provide a crucial judicial ruling regarding the issue of whether companies that create and sell databases are liable for unpaid royalties due to freelance – and even staff -- writers whose work has been included in their products. And even though many publications have altered their contracts with writers to include sweeping rights to re-publish material in such databases, there are still many cases where magazine publishers sell articles by freelance contributors who have not agreed to assign their rights to third-party database companies, which, in turn, license their products to companies, governments, libraries, educational institutions, etc.

Canadian copyright law affords protection to “original” databases – i.e. where the selection and arrangement of the underlying work is distinctive in some way -- but the Federal Court has ruled that it does not extend to “non-original” databases. The line between original and non-original is fuzzy. Different jurisdictions have taken various approaches – the European Union and Australia have more explicit protections for both sorts of databases, whereas in the U.S., the law remains limited to original databases. While the database issue was raised in the federal government’s Section 92 report, released in 2002, there has been no subsequent mention of database protection in the context of the next set of copyright reforms.

The federal government’s policy pronouncements on the issue of databases, moreover, are directed entirely towards the needs of the companies and institutions compiling those databases, as opposed to the rights of those who have contributed to them. That omission is addressed directly by a wide-ranging study on database law commissioned in 2002 by the federal government, written by Robert Howell, a professor of law at the University of Victoria. (His conclusions do not reflect federal policy)

Under existing copyright law, Prof. Howell says, the copyright in a database has no bearing on the copyright of the underlying materials, which remain intact. But, he adds, “[c]ase law would suggest that copyright should be denied” if the database is a compilation of infringing works that have been included without the consent of the original owner. “The inclusion of illegal material in a compilation or database,” he writes, “may enhance the distribution of such material so that protecting the database might further the purpose or consequence of illegality.” The policy implications are obvious. As Prof. Howell asks, “To what extent might the operator of a database or compilation be liable for contributing to, or `authorizing’, copyright infringement by users of the database, with respect to unauthorized subject matter included in the database?” Unfortunately, the federal government’s latest policy documents are silent on the issue.

Books

Book publishers increasingly ask for electronic rights, but these are often not defined properly. They can mean a verbatim digitization of the author’s text, but they can also provide the rights foundation for a multi-media project that alters and enhances the original work. Moreover, the as-yet-unrealized potential of print-on-demand technology has the potential to alter the well-established tradition of rights reverting to the author after a book goes out of print. There’s some concern among writers and their representatives that publishers might attempt to retain exclusive rights in perpetuity if print-on-demand becomes viable. The Writers Union of Canada has sought to include a standard clause in book contracts which provides that a title goes “out of print” and rights revert when the publishers’ sales fall below a fixed number of copies of the text. It has also recommended against contracts with blanket prior permissions for electronic adaptations, because of the near impossibility of predicting the market value of such subsequent uses. TWUC prefers licensing of electronic rights as the opportunities arise.

The practical reality, however, is that books have yet to establish a parallel existence on the Internet or in digital format. It still appears that most people still prefer to read a “hard copy,” despite the advent of CD-ROMs, electronic books and tablet readers, and the availability of web-based texts.

Poetry

Many poets have grave concerns about the Internet. A publisher of fiction or non-fiction may post a few pages of a book on the corporate website for promotional purposes without undermining hardcopy sales. But a literary publisher, using precisely the same technique, can inadvertently end up putting a significant portion of a poet’s collection onto the Internet, sometimes without seeking permission. Poems, as one poet points out, are short, easily copied and often find their way onto the Internet stripped of the author’s name. Indeed, apparently “anonymous” poems are becoming an increasingly common sight on some teachers’ websites. (Similarly, poetry is routinely photocopied for classroom use, simply because it’s so easy to do. It is unknown whether sufficient compensation for this use reaches those poets who are registered with Access Copyright.)

As with some musicians, there are poets who regard the Internet – and specifically their own websites -- as a potentially attractive way to reach audiences, especially since it is so tough to get published. Not surprisingly, younger poets are more receptive to this approach – generating “psychic income,” as it were – while older or more established poets fear the prospect of losing their works to unauthorized digital copying.

Textbooks

The other exception is textbook publishing, a market that has long been the target of unauthorized copying. This is a field quite unlike the rest of the book industry. As mentioned above, many textbook authors are paid flat up-front fees, rather than with a combination of advances and royalties, as is the case for trade book authors. Thus built on a foundation of low-cost “content,” the textbook industry has become exceptionally concentrated, and directs its sales and marketing efforts not at the end-user, but rather to the education bureaucrats overseeing curriculum and professors responsible for preparing reading lists. In other words, it is a highly mediated industrial sector that does not function according to the traditional economic laws of supply and demand. Though in the business of conveying ideas to students, the textbook industry has little structural regard for the rights of the individuals who are responsible for formulating those ideas into text.

For almost two decades, the textbook industry has been fighting a guerilla war to maintain its market share in the face of unauthorized copying. In the 1980s, copy shops set up on the outskirts of most campuses and offered to make illegal reproductions for students. Campus bookstores increasingly promoted the sale of used textbooks. And instructors, in recent years, have taken to creating “course packs” – essentially home-made anthologies comprised of excerpts from various sources. With heavy use of computers and the Internet among university and college students, scanned versions of textbooks and other readings are now readily available on some p2p file-sharing sites.

From the perspective of creators, the textbook sector’s hard-fought battle to curb illegal copying must be carefully analyzed, because it has had a disproportionate impact on the policy debate over the educational use of Internet. This is an area where there’s been a deliberate blurring of producer and creator interests.

Publishers fail to respect their author’s rights to participate in the spoils of a successful title. But unauthorized textbook copying, in turn, is a market response to the textbook industry’s cynical marketing, copyright and pricing strategies. Students do not have a lot of money, yet they are compelled once or twice a year to spend significant sums on new textbooks – at least some of which are written by their own professors. Over time, many students have also come to understand some of the tricks of the trade. Many publishers will issue marginally updated “editions” of existing texts in an attempt to keep their customers away from the used book market. Similarly, most students now recognize that they may be forced to buy an extremely expensive textbook, but will only use a fraction of its content, and do so for a very short period of time. In response, they will buy one textbook or course pack, scan it and make many copies for their colleagues.

In spite of its mistreatment of its authors, the textbook industry has succeeded in asserting its own commercial interests to policy-makers. Through a combination of legal tactics against copyright abuse and the use of reprography licenses negotiated by Access Copyright with universities and copy shops, textbook publishers have managed to recoup some foregone revenues due to photocopying and course-packs by offering legitimate and convenient access to photocopying.

Increasingly, large academic publishers are seeking to create, package and sell digital versions of their material, both in recognition of the high level of computer use among students in post-secondary institutions, but also to cut production costs associated with printing, paper and shipping large texts. Academic publishers are still experimenting with ways of distributing this content (CD-ROMs, password-protected websites, etc.). But there is already a lot of activity in the so-called “distance education” field, where students can take courses outside the classroom and access learning materials electronically, for example, from secure websites. Proponents of distance education argue that it would be more convenient if such technological processes were exempt from copyright, even though they expect publishers and creators to continue producing educational materials to disseminate to the ever growing ranks of students studying in remote locations.

Aware of the music industry’s unhappy experience with the Internet and file-sharing, academic publishers are eager to foster a legal environment that allows them to protect their content from unauthorized copying. The major players are multi-nationals, and will point to various recent laws in the U.S. required by the WIPO treaty that provide such protection, including penalties for tampering with encryption systems. Canada has yet to enact such legislation, and so the Canadian divisions of academic publishers are not producing digital learning material, out of a fear that these files will turn up on p2p sites accessible to any university or college student.

The bottom line is that publishers are failing to win creator support for the cause of copyright in the educational field because they themselves so systematically disregard creator copyright.

Educational Use of the Internet

This is the background context for the battle over the so-called educational exemption for use of the Internet – a contentious issue that has held up the Canadian copyright reform process. Material reproduced for education is subject to copyright law, with some exceptions (performances in classrooms, displays, etc.). Educators pay a licensing fee to copyright collectives for such material photocopied for use in classrooms or assignments. The revenues are distributed to copyright holders.

When the federal government published its first consultation paper on digital copyright issues, in 2001, the question of educational uses didn’t warrant a mention. After a year of discussions, Ottawa issued the so-called “Section 92” report – the commencement of a mandated five-year review of the 1997 Copyright Act amendments. With regard to the educational uses controversy, the report observed that “[c]oncerns with respect to access were raised by many stakeholders during the Government of Canada's recent consultations on digital issues. These concerns reflect the fact that the traditional environment for teaching and education is evolving rapidly with the introduction and use of new information and communication technologies. Ensuring appropriate access could include expanding existing exceptions, introducing new exceptions or clarifying and streamlining existing rights clearance approaches.”

The education lobby – colleges, universities, provincial ministries, teachers’ federations, student groups, school boards – want Ottawa to pass legislation that exempts educational uses of the Internet from the provisions of copyright law, citing a public interest justification. They were seeking an extension of the “fair dealing” rules.

The education coalition’s position was an attempt to fill what its members considered to be a legal void. Internet use in educational institutions is ubiquitous. Students and teachers download a tremendous amount of accessible material, some of which is in the public domain – e.g., government information -- and not subject to any kind of reserved rights, or is material which the owners want to make available without any fee. But there’s also a great deal of content on the Internet that is copyright protected, not just files on p2p servers, but material on commercial websites (e.g., media sites). As the Heritage Committee’s Interim Report put it, “These Internet materials frequently reside outside the repertoire of copyright collectives.”

A coalition of groups coalesced on the other side, including writers’ organizations concerned about various issues, especially the potential loss of royalty revenue and the problem of electronic versions of their work being altered without authorization. The creator grouping, however, was spearheaded in large measure by industry lobby groups representing the Canadian arms of the multinational textbook publishers and the major record labels. They advocated measures, modeled on U.S. legislation, that would make educational institutions responsible for controlling the use of online digital materials.

The Standing Committee summarized the dynamic this way:

“Copyright holders wish to encourage use of the Internet for educational purposes, and see the Internet as an important medium through which their works can be disseminated to the educational community. Copyright holders argue, however, that users of the Internet cannot assume that the material posted on the Internet is meant to be ‘free’, in the sense of being both publicly accessible and available without cost. Copyright owners argue that merely making works available for the public to access through the Internet does not amount to a waiver of copyright. In addition, authors raised the issue that moral rights are not adequately protected on the Internet.” It is clear from the committee’s summary that creator issues – e.g. moral rights and the low income of writers – are secondary to the larger interests of “copyright holders” in the debate over the educational exemptions.

Education groups and rights holders were locked in a political stand-off for almost two years, thus delaying the rest of Ottawa’s copyright reform agenda. “The education side wants to make all Internet materials free except that which is locked up,” an educational textbook publisher told a reporter. “We’d rather make the free content the exception.”

A creative solution, advanced by Access Copyright and adopted last spring by the Committee, represents a middle position that creators can comfortably support. It calls for amendments to the Act that would allow Access Copyright – which currently earns about $20 million a year in revenues from educational institutions -- to negotiate blanket licenses with school boards to cover copyright materials found on the Internet. A similar approach has been proposed for distance learning. “This licensing regime would /ecognize that certain types of copyright material may be posted or accessed on the Internet without expectation of payment,” the Committee added.