Network: Wired war

Electronic publishing is a vast new battleground of copyright law, and now the freelance Davids are squaring up to the publishing Goliaths in an attempt to stop their work being reused for free. By Meg Carter

It's become known as publishing's civil war. On one side stand the serried ranks of media organisations, eager to exploit their traditional outlet's picture and editorial content in cyberspace via Web sites, CD- Roms and subscriber services. On the other side are assorted freelance writers, photographers and other creatives responsible for generating the content that publishers want to use. The victor's prize? Ultimate control over how this material is exploited, and at what price.

Before dismissing this as a petty rumble irrelevant to anyone beyond the hallowed world of newspapers or magazines, consider the words of Chris Zielinski, secretary-general of the Authors' Licensing and Collecting Society (ALCS), which collects copyright fees on behalf of its members. "Never has it been so easy to copy, transmit and store content and, by the same token, never has content been so easy to pirate, misrepresent and misappropriate," he says.

Protection of copyright is critical in the digital era, ALCS believes. By disregarding intellectual property, electronic media puts the very notion of authorship in jeopardy. When everything appears to be free and available everywhere, it risks becoming devalued and, as a result, the quality of its source becomes impossible to judge.

The roots of publishing's electronic copyright conflict lie in years of wrangling between publishers and contributors. In the absence of any agreement to the contrary, the traditional understanding between publisher and contributor is that the originator provides material on the basis that it is used for a single purpose: to appear in a newspaper or magazine - unless otherwise stated.

"The copyright issue in the UK is not terribly difficult in principle," says Clive Thorne, intellectual property partner at the solicitors Denton Hall. "If someone creates an original copyright work, copyright exists."

Where it gets difficult, however, is when it comes to what third parties can and cannot do with that material. "If a publisher puts a piece of copyright material online without some form of licence to do so, it almost certainly represents a copyright infringement," says Mr Thorne.

Publishers have long seen the potential for reusing editorial in other forms, including online editions of newspapers such as the Electronic Telegraph, FT.com and the recently launched Independent Online, and CD- Rom and specialist subscription services. To do so, however, they need contributors to give them greater control over copyright. For although they have automatic rights to use material created by full-time staff under the 1988 Copyright Designs and Patents Act, this does not apply to work submitted by freelancers.

Freelance contributors are not against the principle of publishers using their work in other ways. They are concerned, however, about what they will be paid. The trouble is, publishers are understandably reluctant to pay unless they have to. And besides, with no industry consensus, just how much should they pay?

In an attempt to clarify this situation, a number of publishers are now urging contributors to sign over all rights to the material they submit. Tactics have ranged from formal requests to barely veiled threats, according to Jacob Ecclestone, freelance organiser and deputy general secretary of the National Union of Journalists.

"Most of the papers are just stealing [contributors' material]," he claims. "The Guardian has been particularly aggressive in its demands for copyright from freelancers, but they're wrong in law." The Guardian has recently sent a number of letters to contributors claiming to "formalise" the terms on which their material is published. "Terms and conditions" set out within the letter demand that the contributor gives all rights to the newspaper.

Brian Whitaker, managing editor of the Guardian, explains his paper's stance: "With written material, existing copyright with contributors and staff exists." In other words, the paper's standard agreement is taken to include electronic reuse at no extra fee, unless material has been commissioned specifically for electronic use. "With freelancers' photographs, copyright rests with the photographer," he adds. "In practice, we would tend to avoid using these pictures, so the problem doesn't tend to arise."

The Guardian is not alone. Other publishers, including Associated Newspapers and Mirror Group, have issued similar missives. Each interprets "first rights" as applying to both traditional print and electronic publication. "With work that's going online [today], there's a feeling that if it was written initially for the paper, those rights just carry on," says a spokeswoman for News International, publisher of the Times, Sunday Times, the Sun and News of the World.

At the Electronic Telegraph, the first national newspaper launched online, most of the material used is produced by staff, a spokesman explains. Content provided by freelancers is negotiated for accordingly. Additional money is "rarely" paid to writers, although it is often paid when freelancers' photographs are used, he says.

Privately, publishers admit that this situation is far from satisfactory. "It's an absolute minefield," one national newspaper source confides. "Our stance is that first publication rights include first publication on the Net. In the longer run, however, we know we will have to pay." When contributors are commissioned specifically for electronic publication, they will be paid accordingly, he says. But that can happen only when online publications start to make money. Until then, the majority are run as loss-leaders. "If contributors challenge us now they risk killing it stone dead. We'd not get the chance to build a business that will eventually pay them. So we'd rather put that debate off as long as possible."

Julian Evans, manager of ALCS's recently launched journalists' unit, disagrees. "It is casuistry for publishers to say, `It's cost us so much to set up, we can't afford to pay the suppliers'. What the situation needs is a new business model - and now. We must stop publishing proprietors from believing they have default rights and can do what they want."

Mr Ecclestone, like other writers' and photographers' representatives, agrees. "Publishers are working from an assumption that, if the contributor doesn't object, they have agreed," he says. "Their tactics overlook the fact that a contract is usually struck between two parties who are consenting and equal. However, many contributors feel vulnerable. They don't want to risk losing future work."

An added problem is that, all too often, contributors don't know when their material has been reused. Help may soon be at hand, however. Groups such as ALCS and the Design and Artists Collecting Society are examining ways of policing and collecting fees for electronic reuse on behalf of their members.

ALCS is also involved in plans to develop Imprimatur, an "electronic watermarking" scheme which would digitally impregnate material so its online use could be tracked around the world. Sceptics, however, dismiss such schemes as pie in the sky. To succeed, digital watermarking requires wide-scale investment in signature-reading printers and network protocols. "How could freelancers afford to foot the bill?" they ask.

Perhaps they won't have to. How to protect electronic copyright is a concern not just for the originators of material, but also for the purchasers. Publishers have to ensure that they own copyright to the material they electronically distribute, to ensure that rival organisations do not poach from them, says Dave Henderson, business publishing director at Emap Metro, publisher of Select, Q and FHM.

"Just how we will protect ourselves in the future will be difficult," he predicts. "Already, many Emap titles have found content used and reproduced online by unconnected third parties without permission. Inevitably, it will come down to one publisher suing someone else who's ripped them off."

Small wonder, then, that lawyers rather than publishers are expected by many to reap the first fruits of online publishing.