F ew institutions demand more protection of intellectual property than do corporate media. Eager to exploit the digital age but fearful of the ease with which copyrighted material can be borrowed or stolen, major media companies have successfully pressured Congress into enhancing penalties for copyright violations. The Motion Picture Association of America has gone to court to stop people from de-encrypting DVDs. Recording companies have declared war on Napster in a paroxysm of outrage over the pirating of CDs.
Edgar Bronfman, Jr., CEO of Seagrams, has even attacked the right to anonymity in cyberspace because it "shelters illegal activity." As citizens, "we have no right to anonymity," he recently declared. Defenders of free speech will disagree, and so might the Supreme Court, which has recognized a First Amendment right to distribute political pamphlets anonymously. Bronfman, however, had more important matters on his mind: "the sanctity of copyright."
But media companies seem concerned only with the sanctity of their own copyrights; they tend to treat other people's copyrights with a mixture of acquisitiveness and contempt, as free-lance writers and photographers can attest. In recent years, for example, newspapers have been pirating free-lance contributions, like CD-happy teens, including them in their online editions and re-selling them to other electronic data services without asking permission of the free-lancers (who'd retained their copyrights) and, of course, without paying for re-sale rights or online use.
To publishers' chagrin, free-lancers sued and recently won an important legal victory in federal court. In a lawsuit brought by Jonathan Tasini, president of the National Writers Union, against the New York Times Company, Time, Inc., and other media Goliaths, the Second Circuit Court of Appeals ruled in February that publishers could not include free-lancers' work in electronic databases without their permission. In other words, if The Boston Globe buys an op-ed piece from me, it buys only the right to publish the piece once in the print version of the daily paper, unless I expressly agree to subsequent use in other media.
The victory in the Tasini case was an odd moment for free-lance writers, who are generally unused to winning arguments with publishers, but, predictably, the victory proved Pyrrhic. Facing potential liability for massive copyright violations, The Boston Globe (now owned by The New York Times), for example, is demanding that freelancers who want to see their work published in the future must waive any right to sue for copyright violations in the past. Free-lancers are also expected to give publishers (and any of their licensees or successors) the unlimited right to re-use their current and future work "in any media now known or hereafter developed," for no additional fee. This right of re-use includes the right to alter the work without even consulting its creator and to produce derivative works, for which the original creator can expect to receive no compensation and probably no credit. Other newspapers, including Newsday, the Los Angeles Times, and The New York Times, demand similar agreements.
When you consider that payments for articles for major national and regional papers tend to be in the low three figures, and that free-lancers receive no employee benefits and generate no overhead expenses, you appreciate how much publishers can profit from free-lance contributions. Free-lancers have virtually nothing to gain from these agreements, which appropriate some of the most important rights granted to them by federal copyright law. But many writers and photographers have acceded to these demands anyway. Scrambling for recognition in a very crowded field, anxious to see their work published, dependent on the meager payments they receive for it, the great majority of free-lancers have no negotiating power.
Yet some are resisting assaults on their intellectual property, refusing to sign away so many of their rights for so little money, and some have even gone back to court to block the new contract demands. The Boston Globe is being sued by a group of writers and photographers for unfair and deceptive trade practices under Massachusetts law. The free-lancers recently lost a motion for an injunction but are prepared to take the case to trial.
Should the general public care about the exploitation of free-lancers? That depends on whether they care about the quality of the media they consume. Copyright protections, which are cited by the Constitution, are intended to provide incentives for the creation of artistic and scientific work that presumably benefits the public. (Anyone who thinks that writers and artists are inspired by poverty and should be unconcerned with crass material rewards has probably never lived in a garret.)
Private agreements that subvert the intellectual property rights of creators will drive many independent writers and photographers out of business or into staff jobs with major publications. As staffers, they will not hold the copyrights to their work (these will be held by employers), which means that they will have no control over the way their work is edited or presented. The work could also be published anonymously, which would make some artists and writers less concerned with the distinctiveness of what they create. When writers are unidentified and speak in a royal corporate "we," they're a lot less likely to maintain an individual style or voice.
Indeed, it's worth stressing that the ability of free-lancers to live off their work and their inclination to continue producing it are not all that's at stake here. Publishers are not simply demanding the right to appropriate practically all of the profits generated by free-lancers; they want the unilateral power to alter all free-lance work and to use it to create other works. This means that if I sign their agreements, they could put my name on a revised article that no longer expresses my views or embodies my writing style. Or they could simply use my ideas to create derivative works. They could borrow my language and ideas the way fourth-graders used to borrow passages from the World Book. The agreements being forced on free-lancers by The Boston Globe and Newsday, for example, would essentially give these publications a license to plagiarize.
Publishers will insist that they have no intention of plagiarizing or substantially altering free-lancers' work without permission, and I'm willing to believe them, for now. (They're demanding alteration and derivative rights primarily to cover themselves when they reproduce work in other media.) But there's no question that their agreements give them the unqualified right to appropriate or substantially alter free-lance contributions.
Why would they bother? Consider the context for this dispute--not just the digital revolution but the continuing centralization of media. Large corporate publishers tend to be risk-averse; they self-censor out of eagerness to please most of their readers most of the time, or out of the drive to promote other products by parent and subsidiary companies.
"Fifty-seven channels and nothing on." Despite the promise of the Internet, public discourse is becoming increasingly homogenized. The corporate media value originality much less than imitation, which is easier to market. Consumerism relies on the appeal of the familiar. People wear clothes proclaimed fashionable by magazines or aggressively marketed by national retailers. They vote for politicians who test their ideas and attitudes in focus groups or polls and who successfully package what's popular. They consume media that provide conventional content, tweaked just enough to seem interesting but not so much that it challenges people or makes them uncomfortable.
Free-lance writers are hardly immune from this disease. Whether or not they retain control over their own intellectual property, they still have to please editors, and many share popular tastes or willingly pander to them. I don't mean to romanticize free-lancers. Still, it's not unreasonable to expect that independent content creators will occasionally display some independence. They seem likely sources of diversity and dissent. Today they're being consigned to electronic sweatshops, while content is mass produced by large conglomerates. It is probably no coincidence. ¤
