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SITES Week of October 15 to 21, 1996
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Hot [AJR/][NewsLink] Penny
sites Pagano,
Newspapers Intellectual Property Rights a
Magazines and the World Wide Web former
By Penny Pagano Washington
Radio/TV Special Advertising Section correspondent
-------------------------------------------------- for the
Resources AS TODAY'S ELECTRONIC HIGHWAY stretches further Los
into cyberspace, journalists, other writers and Angeles
ARTICLES publishers are finding themselves drawn into a Times,
thorny new legal dispute over electronic rights to is a
New AJR materials they produce and distribute. Washington,
Digital Until recently, ink, type and the printed D.C.-based
feed page provided the substantive physical evidence freelance
Bylines for information protected as intellectual property writer.
Take 2 under copyright laws. Now this legal security
Archives blanket appears threatened as more and more This
information moves onto the Internet. With the article
INTERACT click of a mouse, a document can be created or was
located, and then copied, changed and forwarded commissioned
Search around the world. by
site In the past half-dozen years, technology has AJR's
Reader altered forever the way information is delivered, advertising
info changed the economics of how it can be used, and department.
Feedback played havoc with existing intellectual property
laws. Today, those who create information and
Take those who publish, distribute and repackage it are
survey finding themselves at odds with each other over
the control of electronic rights.
SPECIAL "The field is changing every 20 minutes,"
JobLink says Dan Carlinsky, a writer who is vice president
Directory of the American Society of Journalists and Authors
in New York. "Everybody is pulling their wagons in
J-awards a circle to protect themselves and their perceived
interests."
Trademark A study by Matrix Information and Directory
Services (MIDS) in Austin, Texas, which measures
Research this fast-changing area, found that as of October
1995 there were about 26.4 million consumers using
the Internet, along with 39 million electronic
mail users and some 10.1 million computers. These
figures represent a 100 percent increase a year in
Internet use since 1988, MIDS said.
As more newspapers, magazines and
broadcasters go online and link their offerings to
other databases, and as reporters search the
Internet for information and sources, more
concerns are surfacing.
Intellectual property law has traditionally
protected the owners of copyrighted materials,
patents, trademarks, designs and trade secrets,
and has given them control over the rights to
their use.
Victoria Slind-Flor, San Francisco bureau
chief of the weekly newspaper National Law
Journal, who specializes in intellectual property
issues, compares this legal area today to a pot of
pasta that's boiling over and "making everything
sticky and messy."
"We're paying the price for America's
incredible ignorance about the law in general and
intellectual law in particular," she says. "People
think that if they have the technology to copy,
they should be able to copy."
Just as much of a problem, she adds, is the
fact that "the laws just can't keep up with the
changing technology. We've got people who are
struggling to understand the technology, much less
how the law applies to the technology."
For journalists, other writers and their
publishers, the lightning rod of intellectual
property rights is copyright protection.
"It's the same issue, but it depends on which
side of the fence you are standing," says Rosalind
Resnick, editor and publisher of the
Brooklyn-based Interactive Publishing Alert, a
twice-monthly electronic newsletter tracking
trends and developments in online publishing and
advertising.
"Publishers are going online on the Net and
want to reuse content. The question is, do they
really own the content?" she says. "Most
publishers did everything on a handshake until
recently. They didn't send out contracts spelling
out which rights they were buying and not buying."
"Magazine and newspaper publishers have never
been in the business of selling content. Their
business has been selling advertising," Carlinsky
adds. "The articles and photographs and line art
are the glue that holds the advertising together
and the magnet that brings in the real customers,
which are the advertisers. That's what the real
thing is all about. Not too many publications make
their money from circulation."
In the past, he adds, publishers have
exercised little concern about secondary rights
for articles by freelance writers simply because
these rights held little economic value. However,
in the last half-dozen years, he says, two things
have happened to change all of that.
"The electronic explosion has changed the
entire nature of the business," Carlinsky says. In
the past, articles sold to a periodical
essentially "turned into a pumpkin with no value"
once they were published. "But the electronic
revolution has extended the shelf life of content
of periodicals. You can now take individual
articles and put them into a virtual bookstore or
put them on a virtual newsstand."
The second major change in recent years, he
says, is "an increasing trend to more and more
publications being owned by fewer larger and
larger companies that tend to be international
media conglomerates. They are connected
corporately with an enormous array of enterprises
that might be interested in secondary use of
materials."
Now, as more newspapers and publishers go
online and add back issues and articles to
databases linked to thousands of sites on the
World Wide Web, the question of who owns that
information looms much larger.
"Most attorneys I've interviewed would
contend that, unless the author has specifically
turned over those rights to the publisher, that
the author still owns rights," says Resnick. "It's
very important for publishers to reuse content
online, and they really need to send out contracts
spelling out which rights they are buying."
Today's problem, she wrote in a column, "is
that many publishers still rely on old contracts
with outdated language that fail to cover issues
raised by the new electronic media. In many cases,
the contracts for the words, pictures and
photographs that publishers now want to put online
were signed long before the new media even
existed."
For reporters who are employees of
newspapers, magazines or broadcast companies,
electronic rights are less of an issue. Their work
automatically belongs to their employer, who can
reuse it by adding it to databases without extra
compensation for employees.
"In the publishing world, publishers have
realized that the electronic rights may be worth a
great deal of money, even more than print rights
in the future," says Neal J. Friedman, an attorney
with Pepper & Corazzini, a Washington, D.C., law
firm that specializes in this area.
Friedman recently represented a group of
independent producers who work for the nonprofit
National Public Radio on this topic. At issue was
an offer from NPR for the producers to turn over
the electronic rights to their work.
In an agreement signed in May between the
independent producers and NPR, the producers
agreed to give NPR the electronic rights to their
material free of charge for two years unless these
new-media revenues reach $1.25 million. Then, in
1997, the two groups will sit down again and
negotiate electronic publishing rights and
royalties. Friedman says the purpose of the grace
period is to give NPR time to develop a marketing
system that will track new media revenues and
issue reports every six months. "We are granting a
license to NPR to use it royalty-free for about
two years, but the property belongs to the
producers," Friedman says.
Recently, some newspapers and periodicals
have begun asking freelance writers to sign
"work-made-for-hire" agreements that claim all
rights, including electronic ones. In some
instances, the contracts even include rights in
perpetuity for any new media developed in the
future.
Such contracts have provoked complaints from
writers' groups across the country, including the
American Society of Journalists and Authors, the
National Writers Union and the Authors Guild. They
also spawned a lawsuit over electronic rights,
which is being carefully watched by publishers and
writers.
A group of freelance writers and members of
the National Writers Union, including Jonathan
Tasini, Mary Kay Blakely, Barbara Garson, Margot
Mifflin, Sonia Jaffe Robbins and David Whitford,
filed suit (Tasini vs. the New York Times) in
December 1993 against companies including the New
York Times Company, Newsday Inc., Time Inc.,
Lexis-Nexis and University Microfilms, Inc. The
Atlantic Monthly was also named initially as a
defendant but was dropped after the magazine
reached an undisclosed settlement with an original
plaintiff, who also left the lawsuit.
In the lawsuit, the writers argued that they
own the electronic rights to their printed works
whether they are repackaged on electronic
databases, online services or other new
technologies such as CD-ROMs. And they alleged
that the publishers sold their articles to
electronic databases without any additional
payment to them. "It was clear to all of us as
working writers that something was amiss," says
Tasini, a labor and economics writer who is
president of the National Writers Union and the
lead plaintiff in the lawsuit.
Moving ahead on another front in this same
area, the National Writers Union has created a new
agency called the Publications Rights
Clearinghouse (PRC). Based on the music industry's
ASCAP, PRC will track individual transactions and
pay out royalties to writers for secondary rights
for previously used articles. For $20, freelance
writers who have secondary rights to previously
published articles can enroll in PRC. These
articles become part of a PRC file that is
licensed to database companies.
To date, several companies, including
UnCover, a fax reprint service and the world's
largest database of magazine and journal articles,
have signed up to participate.
"The critical issue doesn't even have to do
with the lawsuit or PRC," says Irvin Muchnick,
assistant director of the National Writers Union,
who works in the union's West Coast office in
Oakland, California. "It has to do with whether
writers will effectively mobilize and resist the
all-rights contracts that publishers are
attempting to shove down their throats. If they
sign away their rights, there are no rights to
license and no royalties to collect."
Some individual writers have taken matters
into their own hands. According to Resnick,
freelance writer Lee Lockwood won $1,000 from
Playboy to settle a dispute over the magazine's
right to republish his 1967 interview with Fidel
Castro on CD-ROM.
Resnick believes that the best approach for
both publishers and writers "is to offer
freelancers some additional compensation in return
for securing the right to reuse their work
online."
The American Society of Journalists and
Authors now issues "Contract Watch" dispatches
digitally to report on new agreements between
writers and publishers.
While the battleground is focused on
freelancers, ASJA's vice president Carlinsky says
full time journalists should pay close attention
to the issue.
"I think every staff reporter and editor
should care, and many of them do and have some
understanding," he says. "Every staff person
either once was a freelancer or does a little
freelancing on the side or would like to freelance
or is afraid they may have to freelance. So
staffers and freelancers are spiritually brother
and sister whether they understand it or not."
According to Resnick, electronic piracy is
also a growing area of concern for publishers. She
cited as an example one report in which
Knight-Ridder/Tribune Information Services
canceled a contract with ClariNet Communications
Corp., an electronic newspaper based in San Jose,
after unauthorized copies of humorist Dave Barry's
column began appearing on the Internet.
With worldwide access to the Internet, search
engines and links to thousands of sites on the
World Wide Web, "now everyone is potentially a
journalist or publisher," says Mike Godwin, a
writer who is also staff counsel for the
Electronic Frontier Foundation, a public interest
civil liberties organization that deals with legal
and constitutional issues raised by communications
in cyberspace.
"The reason our legal system has allowed
broad [latitude] with publishers is that, for the
most part, the editorial process tends to screen
out copyrighted printed material. Having a larger
staff also tends to reduce any unintended
infringement problem," Godwin says. "Now we have
people producing work at home. It's just them and
their laptops."
"The lines between what journalists do and
what everyone else does will not be totally
erased, but they will blur quite a bit," Godwin
says.
"What happens," he asks, "when suddenly the
whole world of readers can answer you back? They
may set out to refute you. Suddenly you're not
pleasing your editors, and you are exposed to a
lot more criticism."
His advice to journalists in the new
electronic world is two-fold. "Don't assume that
those who dispute what you have written are wrong.
The fact that they are not a professional
journalist means a lot less today," he says.
Second, when caught in an error, he says
journalists should acknowledge it immediately or
be prepared to face the consequences of an
electronic barrage of complaints. "There is a
journalism culture in newspapers and magazines of
opposition to admitting errors," he says. "There
is a feeling that we must never admit we made a
factual error."
Despite these concerns, each day more
reporters click into electronic databases and
access specialized Web sites like the Journalist's
Resource Site. It was started in the spring of
1995 by Mark McGee, former managing editor of
WAAY-TV, an ABC affiliate in Huntsville, Alabama,
because his station owner "believed this would be
the future of communications and wanted to make
sure we were involved in it." The site is now
linked to more than 2,000 other Web sites, and
McGee estimates the site receives at least 5,000
hits a month.
"This is a wonderful tool for journalists,"
McGee says of the Internet. Still, he warns his
own staff to be wary of taking information off the
screen. "You have to check its credibility," he
says.
As someone who has done a lot of writing on
the Web, he is concerned by the ease with which
people can alter and publish something as if it
were their own material. "You are losing control,
and that makes me nervous. I've seen it happen,"
says McGee. "It goes from one publication to
another and it's out there, and there is no
authorship and no copyright. It's all
disappeared."
Still, he doesn't view today's struggles over
rights to the electronic highway and the Internet
as being much different from the concerns raised
when other tools were introduced in his business,
including tape recorders, still cameras and video
cameras.
"Any time something new comes along, it opens
up a whole new drawer of ethical questions, and
we're working through that," McGee says.
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