Does the publisher or author hold the right to secondary publication?
Heather Robertson, Mary Soderstrom and Jim Carroll all tell similar stories. In the early 1990s, they searched online databases and were shocked when they found their own articles. No one had asked their permission or given them extra money to put their work in a database. They felt cheated. The publishers were making a profit reselling their work and they were getting nothing in return. That made them angry.
Those emotions galvanized Robertson’s determination to change the industry. In partnership with the Periodical Writers Association of Canada (PWAC), Robertson sued Thomson Corporation in 1996 for infringement of copyright. Seven years later she now has two lawsuits and is no closer to victory. Robertson and PWAC say they will continue those suits until the law states that freelancers retain the copyright to their creations and that writers must receive compensation for any additional electronic uses.
Soderstrom sued Southam Incorporated in 1997 and also wants the law to change. If the publisher is paid every time someone accesses one of her articles, she wants some of the profit. Six years later her case has yet to be tried.
Jim Carroll didn’t sue. He believes it’s pointless. While Soderstrom and Robertson await the courts, the Internet and electronic databases have become entrenched in everyday life. Carroll now lives off his business, and work he can get from the U.S. and the occasional Canadian paper.
Almost a decade later, retaining copyright has become an on-going struggle that no one seems to able to win. Back in the early 1990s, when the Internet was a new phenomenon, few people knew what it was, and even fewer used it. Large publishers like Thomson and Southam, however, saw a potential for profit. They sold back issues to database companies and charged a fee every time the databases were accessed.
Carroll was an early client. In 1992 he was researching online on the Dialog database. When his search results came back with one of his articles, he couldn’t understand how it had got there. He looked into it and found that The Globe and Mail and Dialog were reselling his articles without his permission and making two to three dollars every time they were accessed. He was hurt, but too busy to do anything about it.
Though no one was suing yet, the publishers seemed to become nervous about the standard oral contract. At the time, most freelancers agreed upon a fee orally. But in the mid-’90s, publishers began distributing contracts to freelancers that would give the publishers the copyright in print and electronic formats. Many papers issued ultimatums: sign the contract or you can’t write for us.
The contracts made many writers suddenly wary about what was happening to their articles. In 1995, Robertson did a search on the Internet and found two book reviews she had sold to the Globe. Her first thought was: Call the police! She had only given permission to publish her articles once in the paper. She began talking to other writers about her feelings of injustice. It was Elaine Dewar that suggested a lawsuit.
In 1996, Robertson became the representative for the Concerned Writers of Canada and sued Thomson Corp. In 1999, the suit became a class action representing 10,000 freelancers seeking $100 million in compensation. The writers charged that Thomson had infringed on their copyright by repackaging and selling their articles on electronic databases without permission.
In Canadian law, copyright remains with the creator unless it is ceded to another party. The freelancers argued they had only sold the copyright to their articles for one-time publication. Any other uses and copyright should be renegotiated.
Two years later, Justice Cumming agreed. He ruled that the freelancers’ articles couldn’t be reused or resold without the agreement of the author. But he also said that copyright does not have to be transferred in writing. This was good for Thomson, which argued that the standard oral contracts implied the rights were sold to the publisher. Both parties appealed.
That process began in February 2004, when Robertson appeared before the Court of Appeal. It will take several months for the court to decide whether the appeal is warranted. If it is, it could be months or even years before the case is heard. Robertson admits she has managed to change little in the industry. Freelancers still receive little or no compensation for the electronic uses of their works.
But she did raise awareness and other lawsuits were launched. Mary Soderstrom and the Electronic-Rights Defence Committee sued Southam for $33 million plus compensation in 1997. The Association of Independent Journalists of Quebec is in the early stages of a suit against Quebecor Incorporated. Neither has yet to see results.
Carroll, for one, is not holding out. At first, he refused to sign a contract with Plesman Communications Incorporated, but he did sign one with the Globe giving them copyright in all forms
“If you want to write, you have to sign the contract,” he says. In his opinion, the little compensation he would receive is not worth fighting for.
Paul Sullivan isn’t going to join the lawsuits either. Sullivan was a Globe editor for 25 years and continues to write for them. He believes it’s the nature of technology that his articles will be distributed in many forms. He argues writers aren’t seeing the benefits.
“There is zip acknowledgment there’s any value in stuff being disseminated more widely,” he says.
But while he is adamant that writers don’t need or deserve money for each method of distribution, he’s wary about signing away copyright. He believes this is where the law does need to change.
Slowly, that is occurring. Similar cases in the United States ruled freelancers retain the copyright to their creations. The World Intellectual Property Organization plans to include electronic rights in the Berne Convention, which is the international law governing copyright. The Canadian Intellectual Property Office has also commissioned studies and hearings to update laws in this country.
Last year in Montreal, Soderstrom was a speaker at one of these hearings. After her speech, one person approached her to ask why it was necessary to fight for writers to retain their creative rights.
“That’s what copyright says, right?”