On-line brings a struggle over electronic rights, copyrights

Thanks to the Internet, competition has flared between publishers and content providers -- free-lance writers, wire services, syndicates -- over precious electronic and digital rights to content.

Content that probably started out in print, but may end up who knows where -- and in what forms -- has ignited a hot new fire in the on-line realm.

And the fuel? That little ©.

For years, newspapers simply assumed they held rights to electronic content. This was true in part because such content had a limited number of purposes, all of which were in well-defined and controlled situations.

Historically, said M.J. Crowley, information editor at the Newark (N.J.) Star-Ledger, newspapers based their decisions about what to archive on electronic databases on what the newsroom needed.

Papers felt comfortable reproducing themselves in microfilm and microfiche, or in the on-line database systems like Lexis-Nexis, VuText and DataTimes. Access was controlled; revenue, if any, was assured.

The lawyers pretty much stayed in the background when it came to what could or could not be published. So librarians and, later, systems types and librarians (who were rapidly becoming systems types) just shoveled most of the stuff from one system to the other, tweaked here in the header and there in the markup code -- and no one felt a twinge when the sports agate vaporized.

The copyright became an issue when newspapers started going on-line big time; organizations such as the Associated Press took notice.

"The AP and others were originally concerned about copying in digital formats -- someone pasting a clipping in e-mail and sending it to a friend. Copyright violation," said Mike Gordon, director of the Interactive Studio at the Atlanta Journal And Constitution.

"But what's the point? Xerox machines don't exist? And what's the damage done? What is the value of copying a news story? Tomorrow it's old news."

So what's the big deal? Well, there are five little deals, but they all revolve around two things: Publishing on-line -- and money.

For publishers, the big deal is, "Thar's gold in them thar hills!"
Selling newspaper content more than once is not a new idea.

As Crowley said, newspapers realized, "'Hey, other people want this, let's market it.'" And they did, offering much of what they had stored to the public through the on-line databases such as Lexis-Nexis.

Later, papers entered this area more cautiously, Crowley said. Newspapers such as the Washington Post and the Los Angeles Times kept one database for the newsroom and a different one for the public market.

"The bottom line is that we've always been microfilming and making a little money here and there from that," said Kathy Foley, editor of information services at the San Antonio (Texas) Express-News. "It's not like a totally new concept."

Then came CD-ROMs, the Internet and the World-Wide Web, opening new markets -- and new cans of worms.

The rapid growth of the Internet community has been far more visible to the public than, for example, Lexis-Nexis, Dow Jones or Dialog, Crowley said. These services remained primarily in the hands of professional researchers and large corporations.

"But now we're talking about a public marketplace with the Internet," she said, "and because in fact it is a new marketing medium and people are looking for ways to use this medium to reach potential buyers and clients, it raises a flag -- and everyone's more alert about protecting their rights."

For lawyers, the big deal is, "Thar's gold in them thar hills!"
As the concept of electronic reproduction has matured, free-lancers and syndicates haven't always accepted newspapers' assumptions about who has the right to what, for how long, and in what form.

A few billable hours may have to be spent writing the airtight contracts which then may need to be individually negotiated before it's clear what content can be published electronically.

"We're just now getting into these discussions at the Star-Ledger," said Crowley. "One of the things that has prompted a lot more discussions is the whole net/Internet/on-line product," she said, because the issues aren't concrete.

Is an on-line publication still just a newspaper, only in a different format? Or, is it a completely different product?

"I just got a memo from the lawyers that we need to schedule meetings on looking at ownership and rights," she said. "My gut feeling is that many papers are just now dealing with this, although they dealt with it years ago and it is now all coming up again for rehashing, spurred on by the Internet."

For now, however, at many papers, the lawyers have planted their shiny Italian loafers squarely in the foreground and warned, "Without a contract guaranteeing the rights to publish on-line, you ain't publishing on-line."

For free-lancers, the big deal is, "Thar's gold in them thar hills!"
As always, writers are signing contracts that give publishers a license to their material. But increasingly, such contracts are addressing whether rights are exclusive, and if so, for how long.

Jim Severens, general manager of the San Francisco Examiner, said contracts with free-lancers will continue to cover standard issues, such as cooperation in editing, payment, verification of facts and independent-contractor status.

But the Examiner recently drafted a new free-lance contract that "goes not just for print," Severens said.

"It's a license to copy or display, redistribute, redisplay, in print or in microform, database, computer, electrical, CD-ROM or otherwise," he said. "We're negotiating a package. We have drafted an agreement intended to address the terms and conditions under which we're purchasing the materials.

"It's fundamental that if we can't obtain an agreement, we won't purchase the material," he said.

Although there are notable exceptions -- such as Harper's magazine, and Ski and Skiing, both Times Mirror publications -- the contract at the Examiner reflects a trend among publishing concerns.

Last July, for example, the New York Times reversed its long-standing policy -- which licensed contributions to newspapers and magazines for one-time use -- by requiring free-lancers to give up future (as in, forever) rights to anything they write for the newspaper.

If authors don't sign, they won't write for the paper. That includes some big names like Garrison Keillor, Ken Follett and Barbara Kingsolver. (There is an exemption for magazine and Op-Ed pieces.)

The more that publishers use such contracts, the fewer outlets free-lancers have -- and the harder it becomes to make a living as a writer.

Individuals and several organizations -- among them, the National Writers Union, Authors Guild and American Society of Journalists and Authors -- are formally and legally protesting the new Times policy.

Irv Muchnick, assistant director in the West Coast office of the National Writers Union, argues that use of materials in additional media without paying additional money is outright piracy.

"In individual cases, what writers may earn may be small, but in the aggregate we're talking about millions," said Muchnick.

"If the pie is being divided and more money is being taken in by publishers, then some of that should be taken in by writers as well, either collectively by the writers' information clearinghouse or by individuals," he said. "Then the balance of power is redressed somewhat."

The Publication Rights Clearinghouse is a collective licensing agency similar to that set up by the American Society of Composers, Authors and Publishers (Ascap), which works to guarantee that artists get royalties when their work is reused. The clearinghouse's sole licensee is UnCover, an on-line document delivery service that provides users with access to the contents of 17,000 periodicals recently purchased by Knight-Ridder.

As for the NWU, Muchnick said, "We will talk to any newspaper or magazine that wants to do right by writers and try to work out formulas for licensing and rights."

For on-line managers, the big deal is, "The gold in them thar hills isn't going to come from content."
On-line managers just don't see much gold to be mined.

"On-line, a story is not worth very much," said Atlanta's Gordon, a 19-year veteran of print. "That's not what a writer wants to hear."

His operation has negotiated deals with all the wire services feeding the Journal and Constitution, and is free to use most of their material on-line. Interactive Studio "likewise took steps earlier to include electronic distribution in free-lance rights," Gordon said.

What's it mean for a free-lance writer to see his or her story posted in cyberspace? Distribution that's potentially global, but --

"There are 1000 stories on our service at once, for example," Gordon calculated. "That's 30,000 per month. If you can pay $5 per month for the service, what's the story worth? Not much. It's not important. For print folks, that's a difficult attitude to understand."

"A lot of free-lance writers sell their piece to the newspaper. Then when it's reused on-line, they want additional money to compensate. My reaction is, we've already paid you for that. But if you want to set a value on-line, it's not worth very much.

"People tend not to look (except for research) at old news. They're not interested if it's already run in the paper. The value is in most cases gone. So my advice is, get all your money up front.

"In the digital world, there are no second rights. It isn't much anyway."

The Examiner's Severens maintained that "newspapers are purely trying to position themselves and protect our franchises through testing the waters of new electronic offerings. A lot of workers think there's a pool of money. That ain't so."

Both Foley in San Antonio and Bob Schafer, publisher of Star Tribune Online in Minneapolis, agreed.

"There's a big debate going on within various groups that represent free-lance writers," Shafer said. "I've seen lots of criticism directed at magazines and particularly at the New York Times.

"The other side of that is that newspapers are not making money from the on-line services as such. The revenue out there just doesn't cover expense at this stage. I hope that changes. My job depends on it."

While publishing companies work to extend their hold on content at the expense of writers, contributors have another thing to think about: exposure.

"The actual profits are negligible," Foley said, "and our ability to monitor usage is impossible at this point, unless we pay up front, which would make all stuff more expensive."

She argues that free-lancers are worse off if their stories don't appear in the on-line product.

"If you don't include it in the database, Joe Blow is not going to tell people to go into Nexis to see it," she said. "It's just as bad for people to not be included. It's a completeness issue. People will want to see the complete electronic version."

Muchnick labels that argument "nonsense."

"If there's no money," he asked, "then why are newspapers getting into it?"

For librarians and systems types, the only gold will be mined by satisfying the lawyers.
What the lawyers ask sounds straightforward enough -- recycle only that content you own -- but meeting their demands isn't simple for the rest of the publication's staff, who face not only the copyright ownership issue, but the technical hassle of protecting copyrights.

"There aren't black-and-white answers," Crowley said. "I think one of the reasons people haven't pushed decisions is because they know it will be a complex struggle."

The complexity arises from a number of far-flung corners. For one thing, there are different rights for text and image material. So far, she said, photos usually have much more stringent rights governing second and subsequent uses.

Besides that, the NAA/Iptc standard header record for picture transmission includes space for information about rights and permissions. Although Crowley said it's possible to attach the NAA/Iptc header to text, most newspapers don't.

And most newspaper front-end and pagination systems have no way to indicate who owns a copyright.

"I want to say, 'Let the lawyers do it,' but I know that professionally I still need to be aware of basic copyright law," Crowley said. "If someone could come up with a simple set of guidelines in basic English it would be really nice. But it needs to be a combination of lawyers and someone who can translate the law from a publishing standpoint."

So the big deal is: What's the best way to filter content so that your paper won't get sued because it used something it didn't own? What can and what can't pass across the ethereal boundary between print and electronic publication?

Unfortunately, that's still mostly uncharted surf.

At some papers, the course ahead appears free of white caps. Take, for example, the Palm Beach Post in Florida.

Mary Kate Leming, assistant managing editor for information services at the Post, said that while her paper has a toehold in cyberspace, it isn't doing anything formal on-line, so for now there is no big deal.

"We're ignoring it for now. Like most newspapers, we don't remarket our syndicated columnists' copy on major on-line services, and our editorial library system lets us flag what gets sent and what doesn't," she said.

The Post, part of the Cox newspaper chain (as is the Atlanta enterprise), uses the same manual process for flagging syndicated material as it does for unpublished clarifications and corrections.

And on the occasions when the paper has decided to use wire material, it has been a nonevent as well: When the Post decided to put up a one-time-only page on the World-Wide Web devoted to the hurricane season, the paper merely convinced the AP that contributing its weather advisories was a public service. (Of course, an AP copyright notice appears at the bottom of the page.)

"AP has sort of always assumed its materials could go out, perhaps because it is an association based on newspaper ownership," Leming said.

Gordon confirmed that while the AP has been cooperative, it took awhile before it "understood on-line."

At first, he said, "they wanted to limit the use of AP material to the number of AP stories in the newspaper plus 10 percent. We kind of looked at them and said, well, how do you count them?

"No. 1, we have no idea how many we used in the paper, which has five editions a day. And what is a story? A brief? A combined story with AP and Reuters? A roundup? There's just no way to know how many AP stories appeared in the paper.

"No. 2, we have no way to know what number appear in the on-line service. It's updated every few minutes. If a story appeared from 7:32 p.m. to 8:02 p.m., if no one used it, does that count as a story? There's no way to know unless we devote half of our manpower to counting stories. And we're not willing to.

"AP got the message from other newspapers as well," Gordon said, "and dropped that requirement."

With syndicates, Crowley suspects, each one will require separate examination. Foley said that when she worked at the Washington Post, anything that was not staff-created was marked so that it only went to an in-house database.

"It was a hassle because in reality we were paying clerical-level people to make that judgment," she said. "And it wasn't clear. We were constantly sweating whether we had sent it to the right database."

Schafer has found syndicates' reaction to on-line newspapers to vary widely. Some syndicates have "dollar signs in their eyes," envisioning "a whole new means of revenue from newspapers -- and unreasonably high prices," he said.

"But some syndicates are excellent to work with, and will grant license to use X amount of content for several months, see how many customers there are, and then arrive at a fair price," Schafer said.

When it comes to the Star Tribune Online web site, however, most syndicates require the audience to be composed of either subscribers or registered users so that the material is not just out on the Web for everyone, Schafer said.

"If it were totally free, what advantage would there be for another newspaper to buy it and put it on their web site? They could just link to our site," Schafer said. "So there's still a lot of caution on the part of content providers and a lot of nervousness about maintaining their copyright interest."

Technically, Crowley sees the copyright protection issue as more cut and dry: "There clearly has to be some kind of filing system with copies of contracts, and it all needs to end up in one spot to review."

Her conclusion: "It's really one of those ugly tasks nobody wants to do. ..."

Once that's done, however, you'll probably need to compile a database and write a filter to sort out the material that's not supposed to go in. Keeping it simple is crucial, most veterans of the newspaper 'Net experience agree.

"My goal is to automate this stuff as much as possible," said Crowley. Hooking the filter to the byline is probably easiest, although a header field may work well if your paper's system folks have the control, capability and licensing to change a header.

If not, you may find that relying on a supplier to change or add them may be more expensive than any potential lawsuits, she contended.

Either way, to work reliably, there has to be good information in the contract database and in the byline -- what Crowley calls the primary key.

But first, someone has to sit down to make sure the information on contracts gets into the database accurately. This likely will involve a combination of library staff, systems staff and a newsroom liaison on contracts.

"Somebody," said Foley, "has to be real aware of who has which right, whether in the library or some newspaper editor. Someone has to take the responsibility of alerting parties.

"We have to educate the newsroom to alert the library when we don't have rights. We can't assume that we know. Most copy editors are not thinking about that.

"We have to educate everybody. Without a copyright symbol, the library won't know."

In Minneapolis, Schafer agrees that relying on a totally automated process would result in copyright violations.

"We have a manual intervention to make sure we're on the right side of the copyright law," he said. Unlike the Examiner, however, the Star Tribune pours all material onto the on-line service, which is responsible for deleting content for which it doesn't have rights.

"We asked the newsroom when they negotiated free-lance articles to make clear that we intend to use the material on-line. Our editors have lists of what we have rights for, and we rely on that," Schafer said.

"We don't have so much of that it is an overwhelming amount of work. But we would like to see electronic archives with data fields to show what rights we have for each article -- print and electronic, print and CD-ROM."

Because Schafer considers the Atex newsroom system at the Star Tribune unfriendly for extracting material (for one thing, it has a limited number of header fields), Star Tribune Online directs the contents of the paper's typesetting queue to a UNIX system every half-hour and does its programming there.

Depending on the strength of protests by writers, the technical concerns may be short-lived.

As Severens said of the struggle over copyrights, "From a practical standpoint, when we're doing our in-house archive, we want to put that in one package and be able to hand that off to everyone."

Sorting through copy via electronic filter, he said, becomes a "fire drill that is not practical. So what newspapers are trying to do is make sure we have the rights to remarket."

Securing those rights now may be central to the evolution of publishing in cyberspace. Unfortunately for writers, competing with corporations in the publishing jungle for those rights may lead to "survival of the fittest" in which the most fit have the bigger, sharper claws.

And the deepest pockets.

-- L. Carol Christopher

See also: What did Shakespeare say about lawyers?

From THE COLE PAPERS, March 1996, Copyright © 1996, All Rights Reserved.