E-Wrongs about E-Rights

10

Editor's Note: The American Society of Journalists and Authors
(ASJA) is a national organization of leading freelance writers. They have
been actively fighting the battle to protect creators rights in the electronic
environment. They frequently provide useful information that aids writers
(and also photographers) in their negotiations with publishers. The following
lists some of the misinformation editors are dishing out and the truth of
the situation.

E-WRONGS ABOUT E-RIGHTS

Electronic Publishing: Fiction and Fact

By now, every freelance magazine and newspaper writer has seen the new breed
of super-dense, multipage contract being offered for even simple articles.
Most independent writers have learned that it's worth paying attention to
what even your favorite publisher asks you to sign.

Rights clauses--in particular, those pertaining to electronic rights--cause
the most consternation. Especially when the publisher wants e-rights for
free, or bundled with the right of first publication.

When you do scrutinize the boilerplate--be it from Esquire, the New Yorker,
or Dental Floss Monthly--you may be moved to call your editor, to push for
changes in the demand for "the non-exclusive right to exercise, by
itself or through third parties, the rights granted herein in any form in
which the Work may be published, reproduced, distributed, performed, displayed
or transmitted (including, but not limited to, electronic and optical versions
and in any other media now existing or hereafter developed) in whole or
in part, whether or not combined with works of others, in perpetuity throughout
the universe...."

And when the call finally gets through, you find an editor who has been
primed to persuade by telling you a few things about electronic publishing.
The problem is, much of what the editor says is wrong.

Here are the Most Repeated Cyberfables, each accompanied by what you should
know to set them straight.

"Databases like Lexis-Nexis are just another way of distributing our
magazine. You wouldn't expect more money if we signed up 1,000 more newsstands,
would you?"

A database is NOT simply another means of distributing a magazine, because
a database doesn't distribute magazines at all; it distributes individual
articles. Online services collect a per-article fee from database users
and pass a piece back to the publisher. It's as if a reader could go to
a newsstand, slice your article out of a magazine and pay for the clipping
alone. It is, in effect, an electronic delivery system for a reprint service.

"We don't "cherry-pick." We use the article only as part
of the whole issue in which it appears. It's simple archiving."

In a typical text-only database, there are no graphics and no ads, and frequently
the database is missing some editorial matter, such as letters to the editor,
short items, and articles by authors who have insisted that their work not
be included. Hardly "the whole issue."

"This is just like microfilm."

Microfilm, which replaced bound volumes, is a form of magazine archive:
The film contains the whole issue as an issue; once it's sold, no more money
changes hands. But an electronic database, online or CD-ROM, is an archive
of articles, not of issues of magazines. The publisher's copyright covers
the compilation the way articles, graphics, and ads are strung together--but
not the individual constituent parts. (Just as a writer's copyright in an
article is for the stringing together of words; the writer doesn't own the
individual words.) In the case of online databases, the reader pays the
online service per hit, the database producer takes a cut, and the publisher
gets a royalty. The only party in the chain who doesn't keep making money
is the author--unless the publisher's contract calls for sharing the revenue.
"But no publisher is making a dime at this."

Wrong. With databases, publishers profit from the first sale on, because
there are no startup costs; they sign a deal and collect royalties. Some
heavily researched publications, like the New York Times, already make millions
a year from electronic products. Others make peanuts. But whatever they
earn from these databases is pure profit. On the other hand, online editions
of a magazine, including separate sites on the World Wide Web, may have
high startup costs and bring little initial income (although major advertisers
are starting to sign up for some prominent magazines' sites). But while
bottom line is what it's all about, no publisher expects profits from Day
One in a new print venture. Nor does any real publisher expect freebies
when starting a print venture. Electronic publishers pay everyone from their
computer programmers to the electric company. Why should they get content
for free?

"We don't charge download fees on our Web site. If we start charging,then
we'll pay authors."

Download fees are just one of several ways online publishers profit. They
sell ads, products and services, and mailing lists. They gain increased
paper subscriptions and general promotion of the magazine or newspaper.
In the case of commercial services, like America Online, they may earn finders'
fees for bringing new subscribers to the service. Some of the most profitable
publications are controlled-circulation give aways with heavy advertising;
would you hand them free articles because they don't charge for subscriptions?

"We don't know which articles are accessed. It would be too expensive
to keep track."

Untrue. Per-article tracking is not only doable but common.

"It would be too expensive to write a lot of small royalty checks."

It might have been, but writers and agents have joined in the newAuthors
Registry, which has already begun to make things easier for publishers and
database producers by conglomerating those small royalty checks for authors.
Never accept the attitude that "the book keeping is difficult, so we'll
keep all the money."

"The exposure will be good for you. It'll get your name around. It'll
sell books."

By that reasoning, you shouldn't charge for print publication either, and
you should give away first serial rights to your books.Even if it seems
that an online appearance can help a new book with extra exposure, will
it make sense in a couple of years, when the book is out of print? The chapter
excerpted in a magazine may continue to earn royalties for the magazine
publisher while doing nothing for you.

"We can't delete a single article."

Publishers control their own Web sites, and standard agreements with database
producers allow for removal of any material as requested by the publisher,
before compilation or after the fact. If a publisher won't pay, an individual
piece can be left out.

"If you make us delete this article, you'll be interfering with the
flow of information, research, scholarship, the future of the Western world...."

In other words, when it comes to aiding research, publishers should be allowed
to profit but authors should make a donation?

"We ask for only nonexclusive e-rights; you can resell the work yourself
any way you want."

Do you want to compete with Conde Nast or Hearst in marketing your work?
And what happens when a potential puchaser asks for, say, exclusivity in
a particular region and you have to say no, because the original publisher
may be selling to the competition? But even more basic is this question:
Should the publisher be able to make continuing use of your property and
keep all the proceeds?

"The business is new. Let it shake down a few years, then renegotiate."

Ever try to push the toothpaste back into the tube? Some publishers are
trying to establish an industry standard in which all e-rights--and, while
they're at it, other subsidiary rights--would come with first publication
right. Fortunately, others see things differently. We need to convert the
holdouts now, not do it their way and hope for a better deal next year.

"All the other writers are signing."

Oldest line in the book of Publisher-Speak, and rarely true.

"Our lawyer won't allow any changes."

Best response from a writer: "Neither will mine."

[The American Society of Journalists and Authors is the national organization
of leading freelance writers. The Society's Contracts Committee provides
this information to members and nonmembers alike, in the interest of a better-informed
community of freelance writers. ASJA, 1501 Broadway, New York, NY 10036,
tel (212) 997-0947, fax (212) 768-7414, e-mail 75227.1650@compuserve.com]