December 22, 1998

ONLINE LOOPHOLE A DRAIN UPON INDEPENDENT JOURNALISM

by Andy Oram
American Reporter Correspondent

CAMBRIDGE, MASS.—Since Christmas is a traditional season to thank others for the good they’ve done all year, this moment is an appropriate one to offer our support to independent journalists who keep the lines of debate open in a democracy. And while we’re thinking of the benefits journalists offer society, we can think about protecting them from being crushed by the juggernaut of online publication.

The past year has been a watershed for copyright law. Congress and the courts have worked overtime to make sure that publishers keep control over their information, and that the burgeoning online market reinforces rather than weakens that control. But the people who created that information in the first place—notably, individual journalists—have not been given a share in the bounty.

One has to look at several recent laws to comprehend the sweep of copyright change. The salient feature in most of these laws is that they benefit companies rather than individuals—and they were heavily backed by movie studios, news publishers, database manufacturers, software companies, and others who make big profits by aggregating the work of others.

Through the passage of the Digital Millennium Copyright Act of 1998 a couple months ago, large publishing concerns have girded themselves with new powers. They can install encryption and digital watermarks in such products as VCRs and audio players to prevent people from passing material on to friends. A month ago, a consortium of electronics manufacturers have announced a new Digital Transmission Content Protection specification that lets devices enforce copying restrictions.

The sea change in consumers’ rights that are implied by the Copyright Act cannot be fully comprehended without considering proposed changes to the Uniform Commercial Code. These changes, called UCC 2B after the section of the code under consideration, would enshrine the notorious “shrink-wrap licenses” that one routinely sees when buying software.

Other laws bolstering copyright include this past year’s Copyright Term Extension Act, which added another 20 years to the length of copyright, and a proposed Collections of Information Antipiracy Act. The latter would prevent large-scaled copying of facts from CD-ROM or online databases, and has been defeated a couple of times in Congress but is sure to pop up again.

But it is not my intent in this article to concentrate on new copyright laws. My question is why the proceeds of the information age do not accrue to some of those most responsible for actually creating that information. Why do independent journalists get muscled away from the trough?

As far back in 1993, a journalists’ and writers’ organization called the National Writers Union revealed that independent journalists were getting the short end of the stick. Routinely they sell “first publication rights” to newspapers and magazines, with the understanding that the journalists control republication and earn a few more dollars from it. But the publishers are earning big bucks through CD-ROMs that of old articles—and not paying the authors a penny.

Photographers have similar worries to face in the digital economy. Several photographers sued National Geographic in December 1997 because it reprinted their work in CD-ROMs without permission, and offered low payments to some while claiming that its contracts permit reproduction without payment to others.

Publishers are risk-takers, so they certainly need compensation. But it is not the publisher who actually brings home the goods. It is the journalist in the field who courageously seeks out the dirt in our communities’ politics, and the hazardous chemicals in our communities’ dirt.

We depend on our journalists to do the tough work, whether it involves the danger of visiting a war zone or just the boredom of listening for 12 hours straight while two political parties use the floor of Congress to accuse each other subverting the organs of government. I happen to spend just a few hours a week writing for the American Reporter on a near-volunteer basis, but this experience has convinced me how much society needs real, professional journalists who can afford to support themselves on their work.

Yet independent journalists are being squeezed. They get paid just a few hundred dollars for a typical newspaper article—the same they got paid twenty years ago. According to Jonathan Tasini, director of the NWU, journalists “have lost ground in both relative and absolute terms.”

To stop the unpaid reuse of articles in databases, the NWU launched a lawsuit against numerous publishers under the name of Tasini, et. al. versus The New York Times et. al. But the court ruled in favor of the publishers on the narrow grounds that the databases being sold were “collective works” under the Copyright Act of 1976.

What is a “collective work”? Essentially, it is a copy of back issues from a publication. The key characteristic is that the publisher has not selected individual articles, but has dumped in the entire contents of each issue.

Historically, typical collections have been huge archive volumes or microfiche tapes stuck in the dusty back corners of library basements. Left undisturbed by anyone but an occasional academic or politically driven curmudgeon, these historical collections were not a major source of income.

But the digital age creates an entirely new sort of “collective work.” The production of CD-ROMs containing reprints of popular or scholarly publications has become a multibillion dollar business. And while subscriptions to print publications decline, publishers are searching for ways to further exploit the CD-ROM market—and now the Internet market too.

Anyone who has spent hours scrolling through old microfiches is delighted to see the new digital publications where you can search instantly for particular topics, authors, and dates. While the vast majority of printed newspapers, within a few hours, end up as recycled trash or packing material for shipping Billy and Henry their new “Bomber over Baghdad” video game, CD-ROMs have become necessities for many a business person, lawyer, and researcher.

And so the NWU wants to reassert the journalist’s control over articles used in databases. The court asserted that only Congress could give the journalists what they wanted, by changing copyright law so that databases were not collective works. And according to Bruce P. Keller, attorney for the publishers, Congress was asked many times to make that assertion and refused to do so.

Digital databases may legally be collections, but they function as selected publications because they are so easy to search. It has been only a matter of time before someone took the next step and provided an easy search facility for users. And that step was taken in 1997 by Northern Light, a service that buys up databases from all kinds of publications and offers selected articles to its customers.

NWU is pursuing Northern Light now, on the grounds that it offers selections rather than a collective work and therefore is not protected by the Tasini vs. Times decision. At the same time, the NWU is appealing the decision itself to a higher court.

But the publishers have shown their weight by the favors they have already won from Congress. What journalists really need is the power to demand better contracts, where their rights to database publication are clearly protected.

The book company I work for, since it covers high-tech topics, realized a long time ago that online publications were a potential market and that authors deserve a fair share. O’Reilly & Associates contracts explicitly guarantee that authors get the same percentage of royalties from electronic publications as from print ones. This would be a simple and ethical approach for all publishers to take.

But even if the NWU wins its suit regarding collective works, publishers can merely alter their contracts to preserve the current terms. What journalists need is more clout to use in their negotiations with publishers. I don’t know whether the NWU is the right vehicle to do this, but a force for change must arise or society will lose its strongest independent voice.


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