By Paula Last
When freelance writer Ann Douglas received a new contract for her parenting column in the Toronto Star, she couldn’t sign it. The contract, Douglas said gave permission to third parties to reuse her work without or editorial control and denied additional compensation.
“I was confronted with one of the most difficult decisions I have had to make in my career as a freelance writer,” she said in a Story Board blog post. “Sign a highly objectionable freelance writing agreement, or stop writing a column I loved.”
Murdoch Davis, executive editor of the Toronto Star, said the new contracts are a product of the digital publishing environment.
“Some of the people that have come in and had meetings objecting to this agreement, have pointed out that it could make it harder for freelancers to resell materials to multiple parties,” Davis said. “And that may well be true, but that’s a function of what happens on the Internet.”
The Star is not the only media outlet with such freelance agreements. Transcontinental (TC) Media, which owns Canadian Living, Elle Magazine, and Style at Home, is also getting push back from Canadian writers’ organizations over its latest contract that writers say removes copyright as well as moral rights from the creator.
“We’ve created […] (a) loose coalition that is going to be presenting a united front to TC media,” said Keith Maskell, staff representative for the Canadian Media Guild (CMG). Maskell says freelancers have rights to their work “by default.” Copyright for freelancers is protected under section 13(3) of the Canadian Copyright Act and moral rights are spelled out under section 14.1(1), which protects the integrity of the work. The Canadian Writer’s Group has been fighting against the TC Media’s freelance contracts since its inception in 2009, says co-founder Derek Finkle.
“Technically, the writer still had copyright,” Finkle says, but “they were licensing what I refer to as ‘parallel copyright.’”
The 2009 TC Media agreement included a clause that paid creators a percentage if the work was reproduced. The latest TC agreement removes these rights completely, Finkle said.
“They basically have the open-ended option to remove a person’s byline,” he said.
Susan Antonacci, executive director of brand development for TC Media Consumer Brands, was not available for an interview, but in an interview on Story Board, she said the new contract was necessary for the company to provide content in a multi-platform environment.
The contentious clauses
Some say the 2006 Robertson vs. Thomson ruling set the stage for future agreement. The class action lawsuit, which settled for $11-million, examined the infringement of copyright of work produced by Heather Robertson and other freelancers. Their work had been published in various electronic databases without the writers' consent or compensation.
Alan Shanoff, former media lawyer for Sun Media Corporation and current media law instructor at Humber College, says lawyers are always looking for ways to tighten up their contracts every few years. “By the time the Heather Robertson case went to the court of appeal and the Supreme Court of Canada, most publishers had already revised their contracts and made them pretty tight,”he said.
But writers’ groups are concerned that this climate is making it difficult for freelancers to make a living.
“It guts the freelancer’s opportunity to derive more revenue from a single piece,” Maskell said. “If somebody decides that Article X could be a great germ of a movie, a novel, a website, some ginormous revenue stream, then the creator of the initial work would be completely, irrevocably and forever cut out of deriving any income.”
Finkle adds there is a lot of confusion among freelancers about moral rights clauses.
“A lot of journalists don’t understand what that means,” he said. “The example I gave on Story Board is that if you were to write a positive profile of Sarah Palin, somebody at TC Media could disagree and rewrite it so that is was a negative portrayal of Sarah Palin.”
But Shanoff says he wasn’t “too fussed” about TC Media’s moral rights clause.
“The reason that publishers want the waiver of moral rights clause in is that there’s a fuzziness to the law,” he said. “It’s a question of how much editing can a publisher do in respect of a work, before it violates the moral rights of the author.”
However, he doesn’t agree with the clause in the TC Media agreement that says the corporation can profit from repurposing a writer’s work into a format that was never contemplated by the creator.
“It’s one thing to tell a freelancer, ‘We’re going to take your work and we’re going to put it in any newspaper … we might even sell it to a third party to put into their publications,” Shanoff said. “But then to say, and if somebody likes your work well enough to want to make a movie out of it, we can even profit by that. That’s going a little too far in my mind.”
Warren Sheffer, an intellectual property lawyer the CMG contacted, agreed that the format is irrelevant to a creator’s right to compensation.
“What’s happening is that companies want to treat these people as if they were employees for the purposes of their intellectual property,” Maskell said. “But it isn’t prepared to give any of the compensation that employees get.”
It’s also unclear whether sources have the right to sue for defamation if their story is repurposed to take on a different meaning.
“Once it’s out of the journalist’s hands, someone takes the story and mangles it […] then they’re responsible, not the journalist,” Gil Zvulony, defamation lawyer said.
Good Business sense?
Finkle says these contracts don’t make good business sense.
“Even for TC, the contract has tied the hands of its editors in terms of producing good content,” he said. “I think the editors care, but the executives who are making these decisions have basically shot their own people in the foot, in terms of being able to produce a really good story.”
But from The Star’s perspective, Davis said the agreement hasn’t affected flow of content from freelancers.
“We’ve had hundreds of people continue to contribute to us under the terms of these agreements. Literally hundreds,” Davis said. “One would have to be careful not to overstate the objections.
Shortly after the release of the 2009 TC agreement, the Canadian Writer’s Group (CWG), Professional Writer’s Association of Canada (PWAC), and other book agents retained a lawyer and met with TC Media executives Pierre Marcoux, then senior vice-president and general manager of consumer Publishing and Jacqueline Howe, then vice president. After several discussions, the contract remained the same.
This time, more groups are organizing. Some of the groups that have come on board with the current coalition include CMG, CWG, PWAC, Association des journalistes independent du Quebec (AJIC), the Writer’s Union of Canada, and the Canadian University Press.
According to Maskell, the short-term goal of the coalition is to communicate their dissatisfaction with the TC media contract to the company and re-negotiate terms.
If that doesn’t work, “there might be consequences,” Maskell said, although he declined to elaborate further.
Paula Last is a former health professional and medical librarian. Having been bitten by the journalism bug in high school, her career path took one more turn when she joined the ranks of the Journalism Fast-Track Program at Centennial College in September 2012.