"This is an important breakthrough," said Jonathan Tasini, president of the NWU and a lead plaintiff in Tasini v. New York Times et al., the lawsuit that established the principle that writers must approve and be paid for the electronic use of copyrighted works [See Stephanie C. Ardito's October 4, 1999 NewsBreak.] "Steve Brill has acted responsibly and ethically, and we applaud him for laying down a standard that all publishers can emulate. Through the direct dialogue and negotiation that led to this agreement, Steve Brill is working with us to kick open a door to a new set of ground rules to establish fair and stable relationships between creators, consumers, and distributors. We hope and expect that the deal will be a model for other publishers to address the significant liabilities they have incurred as the result of the unauthorized sale of copyrighted material."

As in the Tasini ruling, this arrangement for royalty payments from Contentville only applies to cases where the authors have retained copyright, but not to articles produced as works for hire or cases where all rights have been transferred to the publisher by the author. If there was no contract signed, then an author retains copyright and the publisher does not have the rights to resell the article to an electronic database.

Freelancers, who were exuberant about the Tasini case, have greeted the Contentville agreement with great enthusiasm. Carmen Miller, a writer and information industry consultant, said: "I've always found it somewhat ironic that in an industry that is as copyright sensitive as the online information industry is, or should be, so few people are willing to stand up for the rights of freelance authors. For the past 25 years, U.S. copyright law has made it quite clear that freelance writers own the rights to their works if they have not signed contracts to the contrary. Unfortunately, the online information industry has, for the most part, ignored these rights. That's why the National Writers Union agreement with Contentville is so exciting. Authors are finally going to be compensated for the electronic reuse of their work at the Contentville site. And the 30-percent royalties authors will receive for each download seems very equitable."

The National Writers Union reportedly has over 5,000 members nationwide, representing journalists, book authors, technical writers, and poets. It claims to be the only union dedicated solely to advancing the interests of freelance writers. The NWU is affiliated with the United Auto Workers Union.

The NWU's Publication Rights Clearinghouse has negotiated other agreements besides that with Contentville. According to the PRC site: "Each agreement the PRC makes with its partners is unique. Our agreement with UnCover calls for the company to set aside 30 percent (currently $3) of its fee for every article it faxes to a customer. That fee then goes to the PRC, which takes an administrative cut of 20 percent (60 cents) and sends the remaining 80 percent ($2.40) to the writer. Typically, an UnCover customer pays $13 per article ($10 plus the $3 copyright fee).

"Our agreement with the Copyright Clearance Center [CCC] enables writers to set their own royalty rate for each CCC program. By registering with CCC, writers are able to collect royalties each and every time a licensed user photocopies their work. CCC's transactional licensing programs include academic permissions, general photocopying, and foreign authorizations. CCC charges an administrative fee of 9 to 15 percent, depending on the program."

The NWU also cooperates with The Authors Registry (http://www.webcom.com/registry), a nonprofit organization that helps expedite the flow of royalty payments and small reuse fees to authors on behalf of publishers. It's reportedly been called the ASCAP for writers, though the NWU also sees itself in this role. The differences between the two organizations are that the Registry doesn't track online usage and only NWU handles licensing agreements. Since the inception of its Rights Payment Service in 1996, the Registry claims to have distributed over $1 million to authors.
 

Other Developments
The Contentville agreement came in early August, about a week after the announcement of a settlement in the case involving UnCover (http://www.uncweb.carl.org) and a group of authors representing a class-action lawsuit that had been filed (not, however, by NWU or PRC members) in October 1997. The $7.25 million settlement (with funds coming from previous owners Knight Ridder and Dialog) requires UnCover to expand its royalty payment system to include individual authors as well as publishers (UnCover did have contracts with many periodical publishers). Like Contentville, UnCover now offers a licensing agreement with any author who requests it, paying royalties semiannually. Any author who retained copyright in an article delivered by UnCover between Oct. 22, 1994 and July 12, 2000 may be eligible to participate in the settlement. Claim information is available at a settlement Web site (http://www.uncoversettlement.com).

According to Jonathan Tasini, the National Writers Union has targeted Knight Ridder (KR) and its NewsLibrary database of newspaper articles for possible legal action. Tasini said that NWU sees KR as a serious infringer and that it's currently gathering information from writers to present to KR, in hopes of a settlement.

The NWU has also been in discussions with Northern Light for several years. Tasini indicated that he was disappointed in the lack of responsiveness. He said that Northern Light is "high on our list and in the cross hairs for legal deliberation."

While full-text articles have been available in online databases and on CD-ROMs for a long time, the widespread and easy Web access has forced the reuse issue to high visibility, and fueled the flames of indignant authors. Several writers' discussion lists were recently flooded with comments from writers surprised to discover that their articles were for sale at Contentville.

This spring, freelance authors, supported by the NWU and two other organizations, filed a class action suit against The Boston Globe (whose parent company, The New York Times, lost in the Tasini case) for unfair practices in regard to its contract with freelancers. The Globe wants freelance contributors (writers, illustrators, and photographers) to sign a contract that signs over rights in all media (including the Internet) to all past, present, and future creative works—for no additional compensation. The Boston Globe reportedly informed freelancers that they would not be hired again unless they agreed to this.

Freelancers have taken the recent developments to heart and are frequently refusing to sign contracts that grant subsidiary electronic rights. The monkey now seems to be on the backs of publishers and aggregators to make sure they have the proper rights to license content to others. Many agree on the principles of authors' rights and the feasibility of implementing a fair system of royalty payments going forward, but the issues get very complex when looking backward. If publishers and aggregators don't have good records of their previous agreements with freelancers versus staff writers, cannot track down previous authors, or are unable to determine rights transference, there may be a backlash of individual articles or whole periodicals being removed from databases. Searchers are rightfully concerned about having consistent access to electronic information—and at reasonable prices.

Publishers have long complained that database aggregators and online services did not provide article-level accounting of use, and they have therefore been unable to provide the information and appropriate division of royalties to authors, and have also claimed that it would amount to pennies when divided up. Some in the industry have suggested that the publishers pool an appropriate amount derived from past subsidiary sales into a pot and let the authors (perhaps represented by the PRC) figure out an equitable distribution of funds.

Tasini said that the services, the aggregators, and the publishers are all liable, and cannot foist the blame off on another in the information provision chain. "It's rubbish," he said. "Infringement is infringement." He feels that by not agreeing to negotiate they are exposing themselves to massive damages. While he notes that a retrospective settlement would be complex and difficult because of the time and scope of the problem, he feels that a fair resolution is doable if the parties involved will sit down together.

So, there's turmoil all around in the publishing and information industries. With all the publicity and consciousness raising about authors' rights, I suspect that many more freelance writers will be doing a much closer read of their article contracts, and publishers will be scrambling to re-evaluate their contract agreements. And, all eyes will be on whether the Supreme Court agrees to hear the appeal of the Tasini case filed by the defendants.