Monday, March 04, 2013

between a rock and an oddly unsympathetic place

The Rock

Today, the Canadian Media Guild put out this press release taking Transcontinental Media to task for new freelance writing contract terms. Transcontinental Media publishes some Canadian magazine staples, like The Hockey News Canadian Living and Style at Home, and a number of local community newspapers across the country. They are an important partner in Canadian culture in that they provide Canadian readers with Canadian stories and they provide Canadian writers with a market for those stories.  

Used to be, freelance writers would sell first Canadian serial rights to the content they wrote for outfits like Transcon. What that meant was the publisher had the first right to publish the work in a Canadian magazine or newspaper. That's what they paid for, that's what they got. The writer retained all other rights under copyright to the work, allowing her to resell the work in a non-competing market, collect it into a book, sell it to a database, etc. 

Most importantly, the writer retained the moral rights to her work, meaning control over the integrity of the writing, the by-line, the opinion expressed, stayed with the person who actually thought up and wrote down the sequence of words. What a concept.

All that has changed. As media companies concentrated, vertically integrated, converged, united, corporatized and grew, writers saw more and more of their rights demanded in contracts. Occasionally, they saw more and more of their rights taken despite contract terms to the contrary (ask Heather Robertson what that's like). To add insult to injury, even as rights-demands increased, pay rates for freelance writing stalled and even shrank. The average writer in Canada makes less today than 30 years ago.

Corporate freelance contracts are the butt of industry jokes these days, with wording that asks for a rights territory as large as the universe, and so all-encompassing that they often account for technology not yet invented. According to the CMG, this latest contract from Transcontinental even goes so far as to demand the waiver of the writer's moral rights. 

Writers groups of all sizes in Canada are joining with the CMG and calling for writers to stand firm against this latest incursion onto our intellectual property. Frankly, if the waiver of moral rights under copyright becomes a standard contract term, there might as well not be creator copyright anymore. What's the point of owning the work you create if those using it provide crap compensation, and claim every possible use for the one crap fee? 

Freelance writer, Ann Douglas, set a brave example as she resigned from her columnist contract with the Toronto Star over similarly ridiculous terms. Good for Ann... though it pains me to have to congratulate someone for quitting paid work. It will pain TorStar's readers as well, because Ann is one of the most-read parenting writers in North America.

The Oddly Unsympathetic Place

I note that it's the Canadian Media Guild (a union), the Professional Writers Association of Canada (the industry association for freelance writers), the Canadian Writers Group (an agency) and The Writers' Union of Canada (the industry association for book authors) who are doing a lot of the heavy lifting on copyright and contract issues for Canadian culture these days. That seems natural, doesn't it? One would expect associations, unions, agencies, collectives of all kinds to come together in solidarity when the rights of Canadian workers are threatened.

Why then are writers also forced to fight a rearguard battle against a bunch of other collective organizations actively promoting incursions onto our intellectual property as dire as those in these ugly contracts?

The Canadian Association of University Teachers (CAUT - a collective for the rights and interests of teachers and professors) says on their website (emphasis mine):
As the creators of intellectual property, academic staff have a strong interest in ensuring they receive credit for and control over their work. CAUT actively defends the works of academic staff from expropriation and misuse by employers and other special interests.
This suggests that they might stand with the CMG, PWAC, CWG and TWUC against rights-grabbing contracts for the creators of intellectual property. And yet, CAUT has also published a document called CAUT Guidelines for the Use of  Copyrighted Material, which spells out a number of ways CAUT advises its members to use the intellectual property of Canadian writers without permission or payment. In that document, CAUT says:
  • Copying 10 percent of a work is likely to be fair. 
  • Copying more than 10 percent of a work (up to and including the entire work) may be fair depending on the circumstances. 
For example: 
  • Copying an entire chapter from a book is likely to be fair. 
  • Copying an entire article from a periodical publication is likely to be fair. 
  • Copying an entire short story, play, poem or essay from a book or periodical publication is likely to be fair.
I've noted elsewhere how strange and disappointing it is for writers to watch our traditional partners in culture walk away from licensing arrangements. With millions of dollars per year in writer royalties on the line, educational and library associations seem to be falling all over themselves to not stand with Canadian writers in our quest for fair compensation. 

Certainly, it's with growing disgust that most Canadian writers watch college and university administrations cut their costs by advising faculty to avoid paying writers and publishers for their work. In my job, I hear again and again from writers asking me if their own alma mater has signed a licence... because that same university just sent the writer a donation request. 

When I tweeted about Ann Douglas' resignation from the Star the other day, a research librarian from a unionized Canadian university tweeted back:
"[the] Star has right to offer dumb contract, and yr friend has right to refuse. no rights denied"
Let me ask all Canadian university teachers and librarians... the next time you are offered a dumb contract, do you want your union to do something about it, or will you just exercise your right to be unemployed?

And when the day of that dumb contract comes - and we all know it will - who will your union call to be the public face of your PR campaign?

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