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THE CUTTING EDGE

New Media Bring New Problems to Copyright Arena

Publishing: A civil war is brewing over compensation for electronic use of print material.

September 02, 1996|NAN LEVINSON and DONNA DEMAC | SPECIAL TO THE TIMES; Donna Demac is an attorney in New York who has represented artists and writers in contract disputes. Nan Levinson is a writer in Boston and the former U.S. correspondent for Index on Censorship

When Therese Iknoian learned that the sports and fitness column she wrote for the San Jose Mercury News was being reproduced on the paper's World Wide Web site, she was more angered than flattered.

As a freelance contributor, she assumed she had granted the Mercury News only "first serial rights," the standard for print publication. But the Mercury News, following the policy of its parent company, Knight-Ridder, wanted her to sign a contract turning over the right to use her work in all electronic media.

For months, Iknoian negotiated without success. "In March of this year," she recounts, "they told me to sign it or get lost, so I quit writing for the paper."

Tales like Iknoian's are becoming common as individual creators of words, sound and images--content providers, in online parlance--lock horns with the corporations that assemble their output into CD-ROMs, Web pages, online services and other electronic media.

At issue ultimately is the status of intellectual property in the electronic marketplace. More immediately, disagreement over compensation for electronic use of material originally created for print is turning into a publishing civil war.

"These are complicated issues," says David Yarnold, the editor involved in the negotiations with Iknoian and now editorial director for new media at Knight-Ridder. "And everyone ought to be thinking about fairness for everyone involved."

That's not so easy. Newspapers and magazines usually own the copyright for the material their employees create on the job. But many freelancers, who get few of the benefits of employees, have traditionally sold only one-time print rights and retained full ownership of their work for subsequent sales.

Now a growing number of publishers, scrambling to be a part of the new-media world, are insisting that creators explicitly turn over control of electronic rights without additional compensation. Others are asking freelancers to sign work-for-hire agreements, thereby relinquishing copyright and all other rights--including the right to revise their work--to the publisher. These latter rights, known in legalese as "moral rights," are particularly vulnerable since malleability is a defining characteristic of digital media.

This newspaper, for instance, has issued contracts in which freelancers grant the paper nonexclusive rights to use the material "in any format or media whether now known or later devised."

The publishing rights conflict involves some of the biggest names in the business, from the glossy magazines of the Hearst empire (Redbook, Good Housekeeping, etc.) to educational publishing giant Scholastic Inc. to wire service Associated Press, which recently began requiring freelance photographers to sign contracts granting all rights to their work.

Publishers say their motives for developing the new contracts are practical as much as financial. Bob Simon, legal counsel for KRI/Knight-Ridder, says: "Publishers want the ability to disseminate by any means available. It's not practical for authors to retain rights to approve or disapprove, so the ultimate solution will give all rights to the publisher and cover even technologies not yet invented."

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The biggest e-rights battle began last summer, when the New York Times instituted a policy of assuming the rights to freelance work in all formats for all time without additional payment. Alarmed that the Times contract would set a nationwide precedent, the Authors Guild, the National Writers Union and the American Society of Journalists and Authors formed an unusual alliance to protest the policy through old media and new.

This May, when the Boston Globe, a New York Times subsidiary, sent similar work-for-hire contracts to its freelancers, Robert Jordan, a Globe columnist and president of the Boston Globe Employees Assn., sent a letter to the paper's managing editor protesting the policy--apparently the first time an employee group at a newspaper has backed freelancers on the issue. Jordan warned that where electronic rights are concerned, "we would also voice strong objections to any similar language that would surrender to the Globe the complete ownership of all [bargaining] unit employee writings . . . ."

The controversy is expected to come to a head late this fall when a federal judge in New York rules in Tasini vs. New York Times on whether freelance writers retain their copyright on works reused for electronic databases.

In December 1993, 11 freelancers, led by National Writers Union President Jonathan Tasini, sued the publishers of the New York Times; Newsday (owned by Times Mirror Co., parent company of the Los Angeles Times); Sports Illustrated (Time Inc.); and the Atlantic, along with Nexis and UMI, for the unauthorized sale of their articles in online databases and CD-ROM compilations.

"The suit has the potential to totally reshape the area of writers' rights," says Tasini. "If we win, we'll have the opportunity for unprecedented leverage with the industry."

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