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Freelance Writers' Issues

Hope for Writer-Friendly Legislation

With Democrats in control of Congress, there is hope for winning passage of measures to improve writers' lives. Massachusetts' Senator Kennedy and Representative Barney Frank have agreed to spearhead writer-friendly legislation sought by the National Writers Union, which the leadership of the Authors Guild and ASJA also support. The Creators Protection Act will be re-introduced to eliminate antitrust provisions that hamper our ability to deal collectively with publishers. We will also pursue legislation to end a burden creators now have − to pay fees to register their works with the U.S. Copyright office in order to demand punitive damages from willful infringers.

A description of the NWU's legislative initiatives is below. To volunteer to be part of getting them passed, email co-chair Barbara Beckwith.

Legislative Initiatives For the New Congress

I. Reintroduction of the Creators Protection Act (formerly H. R. 4643) on a redrafted basis, namely, focusing on its anti-trust exemption provisions and striking out the words such as "collective bargaining" that have previously prevented the bill from gaining the larger sponsorship and support necessary for its eventual passage.

Without this bill becoming law, the capacity of the NWU, UAW Local 1981 to gain substantive reform on behalf of freelance writers has been proven to be extremely limited. That fact, more than any other (including comprehensive health insurance), is what has been behind the loss of membership in the NWU, UAW Local 1981. Over and over again, when members have been queried why they left, they have responded: nothing has changed despite the Tasini Supreme Court decision. Starting with its founding in the early 80s, when NWU was under the assumption that the union could function like a union without collective bargaining rights, the NWU soon discovered that Harper & Row, for instance, felt no legal obligation to bargain with its authors. Continuing through the 1990s, the NWU leadership has recognized the need for the power that only organized labor, built through collective bargaining, can bring.

This belief continued after the UAW affiliation in 1992, when organizing was backed by comprehensive health insurance that was frankly unaffordable for most of its members because it was not the result of a collective bargaining agreement with its employees and thus limiting its effectiveness as an organizing tool. Much of the growth of the union in the 1990s, rather, was the result of a "revolution of rising expectations" about a Democratic Party administration in the White House and the NWU's expansion of cutting edge services such as contract and grievance advice on behalf of individual members, and local events of an educational nature around the rights of writers and professional advice, including anticipation of a federal court victory around the Tasini case.

When the court case won in the Supreme Court after a long protracted battle, the NWU was confronted with the problem of lack of enforcement. Copyright infringement continued with impunity by major corporations, which engaged in selective interpretation of enforcement provisions (namely for their own protection, not writers'). The all rights contract, which had been introduced in the 1990s as an end run around the possibility of a writers' victory in the Tasini case in the Supreme Court, became increasingly the norm for journalists and now for other writers as well.

Unfortunately, throughout all this period of focus on a legal victory, emphasis was not made that the US is the only country in the advanced industrial world whose freelance writers have not had their collective bargaining rights recognized by law. The overwhelming power of this message was lost in the focus on the courts and the assumption that the courts, rather than the political struggle, would provide justice to freelance writers. In the course of doing so, the political education of freelance writers was sorely lacking and writers were reduced too often to the status of passive observers of the judicial process dominated by lawyers because settlement −effectively in camera proceedings −further limited the leadership's communication to and education of Local 1981's membership and the public at large.

Legislative efforts, meanwhile, focused on the words "collective bargaining" rather than on the substance of the 1934 Wagner Act's effectiveness: antitrust exemption for organized labor that made collective bargaining possible.

It is vital to the interests of American democracy and American labor, both of which rely on an informed citizenry, that the kind of truth-searching non-corporate-controlled investigative journalism that freelance journalists bring in these terrible times be preserved and enhanced; to do this, freelance journalists in the U.S. must be given the same collective bargaining rights that have been recognized in other countries throughout the world. To carry this out, however, it is strategically imperative that the emphasis in a reading of the bill be on anti trust exemption that would allow for bipartisan support for creators rights and avoid as well cross-testimony by other non-union professional creators organizations that would undermine the bill. I have already secured the verbal support of both the Authors Guild and the ASJA (American Society of Journalists and Authors) leadership behind such an approach, something we did not have with HR 4643's use of the words collective bargaining. Therefore, we need to introduce now this legislation to begin the process of building the broad-based sponsorship, broader coalition support, and broader public awareness that will secure this bill's passage in a near future session of Congress.

2. Eliminate registration requirement in order to be eligible to statutory damages for copyright infringement.

This underscores Lessig's lack of concern for the wellbeing of creators and his overemphasis on short-term copyright protection (similar to the 17 year rule for patents) as the alleged font of cultural innovation and growth. In fact, the expansion of literary, musical and software creations in the last 40 years gives ample evidence that the opposite is the case. If anything, the further expansion of creators' protection, not unpaid access by sellers and consumers of creations, is what is needed for creators to earn the money they need to not only survive but also create culture. The average freelance writer and photographer and graphic artist has to take many jobs to survive in the underpaid and highly exploitive freelance market dominated by corporate giants.

The United States is one of the few countries in the advanced industrial world that requires registration with a government agency before being eligible for full protection under the law of their copyright.

Under the 1976 Copyright Act, unfortunately and more likely by design, restrictions were put into place that prevent creators from effectively being able to sue for punitive (statutory) damages for infringement unless the creators register, for a fee, each and every creation or change thereof. As a result, the vast majority of writers were stripped of their constitutional right under the copyright clause by what has become effectively a financial high bar put up by the government.

The only ones who benefited by this were corporate infringers of writers' copyright, i.e., corporate pirates.

This was one of the weaknesses of the Tasini case, the fact that few writers were legally entitled to sue because they had not found it financially feasible to pay the fee for registering their works with the U.S. Copyright Office. To gain some compensation for this vast majority of writers, the settlement attorneys traded an unheard-of boon for publishers and database companies: they agreed to require infringed writers, as part of the settlement, to opt out if the writers wanted to avoid automatically surrendering non-exclusive electronic rights to all infringed articles to the defending companies, and all 25,000 companies they had illegally sold similar rights to.

Therefore, we propose that a bill be introduced that would relieve creators of this onerous burden and strike from the 1976 law the registration requirement in order to be eligible for statutory damages for infringement of copyright.

Creators' rights under the Constitution should not be sacrificed at the altar of funding a government service, the U.S. Copyright Office, which is supposed to serve the creators.

3. Legislation should also be introduced as a positive progressive fallback from No. 2 above that would extend what is already industry standard in both the publishing industry and periodicals: the registration at the U.S. Copyright Office of a creator's contribution in the name of the creator, not just as an issue in the name of the publisher. While this does not eliminate all rights contracts since the individual creator is assigning all rights to the publisher (by contract), it does provide the copyright protection for creators that was the original intention of the Constitution's framers. The technology currently exists whereby such registration can be carried out easily and with a minimum of cost, time and labor through electronic registration under the Copyright Office's website, which is already used by publishers to effect their own copyright protection.

4. Additional Lobbying of Congress and the Justice Department around enforcement of criminal penalties and copyright protection by the Justice Department. Currently, the U.S. Department of Justice has established an anti-piracy criminal task force to protect copyright holders of musical creations for the willful infringement by those seeking commercial gain. This task force should be expanded to include equal protection under federal law for literary and photographic/graphic creators from willful infringers who are engaged in massive organized copyright piracy for commercial gain, applying anti-racketeering and other criminal laws. Recently, Local 1981's Delegates Assembly overwhelmingly passed a resolution calling for such criminal provisions. Many of our members are convinced that criminal prosecution is the only way corporate copyright theft can be effectively challenged. Writers want equal protection under the law.

5. Lobbying of Congress to defeat the U.S. Copyright Office's newly proposed changes in the 1976 Copyright Act that would allow the electronic reproduction of "orphaned" works for commercial gain after a mere "best effort" to locate the rights owner (writer, publisher, etc.). This proposed change stands copyright law on its head. Changes in technology that makes selling works more feasible or economical through the internet should not abrogate nor trump the Constitutional right of writers to exclusive control over their works for a time specified by the law.