Electronic Rights Battle Heats Up

Highway robbery is still with us. But nowadays it's on the Information Highway.As more newspapers and magazines launch on-line publications, Net surfers are finding themselves with new reading opportunities: they can call up a Smithsonian article, or a Time magazine piece or even selected stories from The New York Times. It's fun, it's easy, it's informative.And it's sparked one of the nastiest battles the publishing industry has faced in years.At issue is the claim by freelance writers that when their work turns up on-line, in database services or on CD-ROM, their copyright protections are violated. While staff writers at publications give up their copyrights in exchange for a full-time job that offers them a salary and benefits, freelancers often only sell one-time use right to their material. Most don't object to on-line use of their stories, but they want to be paid extra for it, much as actors get paid for the reruns of their shows.Publishers, on the other hand, say on-line services aren't yet profitable and it is too complicated to track and reimburse writers every time one of their articles is downloaded."The publishing industry, like many industries, is changing quickly. Really, changing too fast to keep up with," says Steve Simurda, co-chair of the National Writer's Union journalism campaign to teach writers about contracts and cyberspace rights. "The people providing these new methods of dissemination are not taking writers into account."We know that we're being shut out of the process unfairly," Simurda told writers at a recent union-sponsored seminar in Detroit. The tug-of-war between writers and publications over copyright infringements has peaked in the past couple of years, ever since publications started building electronics rights clauses into their contracts without paying extra for that privilege.Some contracts claim the right to disseminate articles "by any means and in any media, whether now known or hereafter developed." Writers talk of contracts that even stipulate the right to an article "in perpetuity throughout the universe." Media-law experts say new-age technologies are sapping strength from copyright law. "We have to educate writers so we know how we're getting screwed. Every day, we're getting rights stolen from us," says Simurda. "The standard that exists in our industry needs to be extended to electronic practices. One fee, one use."Freelance writer Janet Braunstein, who covers the auto industry, has seen her contracts change in the past year."I'm a correspondent for a magazine that has an 'all rights' contract and I tried to renegotiate it, but that was one of the things the magazine was not interested in doing," says Braunstein. An all-rights contract concedes electronic use without additional payment. "They aren't on-line but they are planning a Web site."At its 1995 convention, the Society of Professional Journalists approved a resolution condemning efforts to strip freelancers of on-line and other secondary publishing rights. The Author's Guild, whose 7,000 members include best-selling authors Scott Turow and Michael Crichton, has gone on record supporting writers' rights in cyberspace, and the 4,200-member National Writers Union has sued The New York Times.The latest weapon in the battle over cyberspace copyrights is the Publications Rights Clearinghouse, set up by the National Writers Union to track digital distribution of articles. It pays royalties to writers each time their articles are downloaded and has worked out a writers' formula for calculating what to charge for electronic rights.When readers request copies of on-line articles, they pay fax or transmission charges and a copyright fee. PRC has developed a system so those copyright royalties can be paid directly to writers on a quarterly basis. The fledgling PRC currently works with only one company, the heavyweight UnCover. UnCover is the world's largest magazine and journal article database and a recent acquisition of the Knight-Ridder Corp. Writers pay a small fee to register with PRC; their royalties, after administrative costs are deducted, run about $2 each time an article is transmitted.Resale of articles is crucial for freelancers, half of whom earn less than $10,000 annually, according to a survey by the National Writers Union. So writers' organizations are advising freelancers to bill publications an extra 15 percent for the privilege of putting their work on-line or on CD-ROM.Not only has PRC set a payment precedent for rights in the age of new technologies, but it is expected to affect this summer's expected ruling on Tasini vs. The New York Times, a case filed in 1993 in federal District Court in New York. The suit was sparked by a new policy at the newspaper and other major publishers and database operators to use freelance writers' work on-line without paying them extra. The New York Times, which charges $1.95 per article downloaded from the World Wide Web, has blacklisted writers who balk at surrendering their electronic reprint rights, sparking a writer boycott and protest campaign that has drawn in big-name authors like Erica Jong, Norman Mailer and Gore Vidal. And the digital debate extends beyond freelance writers and their magazine and newspaper contracts. When "Le Grand Secret," a French physician's book on the alleged conspiracy to hide the failing health of former French President Francois Mitterrand, was labeled a state secret and banned from publication, a group of volunteers in Britain and the United States typed the text on the Internet. Although the action thwarted an attempt at censorship, it also cut a chilling swath through the author's copyright protections. Photographers are also caught in the fray."I've been trying to figure out how to handle all this," says Dewitt photographer Patrick Yockey, who began e-mail transmissions of his work to newspaper, magazine and public relations clients in December. "Speculatively, I'm thinking that I'll do a base charge for sending a photograph to use in publications, then I'll also send them a file they can use on-line."But you have to charge them something for that on-line use or they'll think they have free access to it," he notes, adding that he is also trying to devise a method to see whether other people download his photos.The formation of PRC and other tracking systems weaken the argument that it is not technologically possible to pay writers for on-line use. And magazines are starting to split into two camps: those that pay for electronic use and those that won't. Harper's Magazine recently announced it would split its on-line and CD-ROM royalties with writers, paying them through the Author's Registry, a not-for-profit agency backed by writers' groups and literary agents. Publishers Weekly also said it will pay for back use in new media. And writers are receiving on-line payments from Seventeen magazine. On the battlefront, music publisher Frank Music Corp. has sued CompuServe for allegedly aiding the downloading and uploading of unauthorized recordings of copyrighted songs. The American Society of Composers, Authors and Publishers (ASCAP) has set up a new department to deal with on-line transfers of musical work and attempts to collect royalties. The U.S. Senate Judiciary Committee is looking at proposals to impose penalties of up to a half-million dollars and jail sentences for Internet copyright infringement. And publishing giant Simon & Schuster has hired cybercops to search the Internet for pirated book manuscripts.No one knows how much money is at stake. Some local writers have calculated their annual losses to be upwards of $1,500 under the 15 percent add-on fee recommended by the National Writers Union. But money is not the sole issue. The on-line debate could spark the most dramatic changes in the Copyright Law since 1978, when it was amended to change the duration of copyrights. Current videotaping and music copying show that the public is apathetic about violations of the copyright law and, in fact, gains access to more information through violations. Artistically, others argue that electronic dissemination without additional compensation will dampen creative motivation. The question is whether the country's writers, photographers, musicians and book authors have the clout to win this fight.SIDEBAR: A Kinko In The System?Is Big Brother is staring over your shoulder at the Xerox machine? Are you getting reprimanded about your color copies? Do you find yourself pressing the "copy" button only when Kinko's employees are looking the other way?Many people hauling books and magazines to Kinko's Copies grumble they're being confronted by overzealous employees unclear about "fair use" exemptions to the nation's copyright law. Ironically, the surveillance comes when federal court decisions are giving wider interpretation to the exemptions permitted under copyright law."There's nothing wrong with you or me taking a magazine in and saying, 'I want a copy for my own use,'" says Michael Huget, a copyright attorney at Butzel and Long in Detroit. A lawsuit filed by Huget's publishing house clients against Michigan Document Services Inc., in Ann Arbor may soon clarify just how far the photocopying can go.At issue are "fair use" exemptions to the Copyright Act of 1976 allowing material to be duplicated for educational, research and news reporting purposes without the consent of the copyright holder. The exemptions are affected by murkier issues such as how the copying will affect sales of the material.Until this year, many copy shops relied on what they saw as narrow guidelines set in a 1991 New York case against Kinko's. In that suit, a judge ordered Kinko's to pay $2.1 million in damages and attorney fees to publishers claiming the photocopying giant violated their copyrights. Kinko's responded by taping "fair use" warnings to its self-service machines and instructing employees to crack down on scofflaw photocopiers.But copyright lawyers say Kinko's response went beyond what was required by the law -- and has not eased despite subsequent court decisions."Kinko's is the last place to look in terms of understanding the rules under which a commercial copy shop can operate," says Susan Kornfield, a lawyer at the Ann Arbor firm of Bodman, Longley and Dahling. "To suggest that [the Kinko's case] had any kind of legal significance around the country is wrong."Kornfield is defending Michigan Document Services against charges its University of Michigan course packs violated copyright protections. A U.S. District Court in Detroit had ruled in favor of book publishers Princeton University Press, Macmillan and St. Martin's Press in the case, ordering the Ann Arbor copy facility to pay $30,000 in damages and nearly a third of a million dollars in court costs. But earlier this year, a three-judge panel at the 6th Circuit Court in Cincinnati reversed that decision on a 2-1 vote."The court found that we did it for educational purposes. That it was perfectly all right," says Beth Wasem, general manager at Michigan Document Services, which doesn't offer self-service copying. But the publishers have been granted a rehearing, slated to begin June 12, before the full U.S. Circuit Court."These are critical issues under the Copyright Act. That's why we went back to the court," says Huget. Attorneys for both sides predicted the "fair use" question will end up before the U.S. Supreme Court.Even though the copyright winds are blowing the other way, Kinko's photocopy police remain in place. A Kinko's employee in Detroit acknowledged her company is "very strict" about its fair use interpretation and fearful of lawsuits.--Mary A. Dempsey


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