Remember way back when, when freelancers were up in arms over a new CanWest contract that demanded all rights “in perpetuity throughout the universe?”
After the uproar that caused, CanWest quietly backed down and started using its previous contract.
Now, apparently, they’re at it again, and some people are taking notice.
The new contract, created in April, looks a lot like the one it tried in 2004. It demands all “moral rights” (i.e. the right not to have your name attached to a story edited beyond recognition), as well as free reign to resell, republish, relicense or do anything else with submitted material without paying a single cent extra.
The differences? Four:
- It does not specifically claim copyright to your work. It does, however, claim an exclusive license forever throughout the world to do with it as they please. So effectively it’s the same.
- It offers you 50% of money it gets from syndicating your work elsewhere (outside their mammoth corporation). Which means they could put a book together of your articles and take half of its revenues.
- It agrees to defend you if someone sues you for the content that’s published in the paper.
- Its scope is “worldwide” instead of “throughout the universe”. So you’re free to sell your stories to Martian papers without restriction.
Here’s the standard contract used in 2001, which is what most freelancers are using. Emphasis mine.
You agree to create and supply material to us for a fee to be agreed between us. We may publish your material once in The Gazette. It may also be published (i) once in any or all other newspapers listed in Schedule A on the reverse, for which you will be paid by each newspaper that chooses to publish it a reprint fee as set out in Schedule A; and (ii) at the option of CanWest News Services, once in any or all of the publications covered in Schedule B, for which you will be paid a single all-inclusive reprint fee equal to 25% of the original fee.
You also grant The Gazette and each Schedule A or B publication that publishes your material a nonexclusive licence to reproduce or sublicence the reproduction of your material by any means or technology, otherwise than in print. This includes the right to republish your material indefinitely as part of their archives.
You will not allow your material to be published elsewhere until seven days following its publication by us in print. If we fail to publish an item in print within three months after it is submitted to us, all our rights terminate in that item and you may authorize its publication elsewhere without restriction.
You promise that all material you supply to us will be original unless we otherwise agree and that publication by us of the material will not violate anyone elseâ€™s copyright interests. We may edit all material for publication. Neither publication nor positioning are guaranteed.
You retain copyright ownership of the material and you retain all print and electronic rights not expressly granted to us. We will make reasonable efforts to direct to you requests we receive for permission to republish your material otherwise than under this agreement.
Either of us may terminate this agreement at any time, by notice in writing, but termination will not affect any rights granted hereunder in previously submitted material.
In a nutshell:
- They have to pay for each time they publish an article in print. Other papers in the CanWest chain get access to the same content at a reduced price, but must also pay you if they use it.
- It’s non-exclusive. You own the content, and can do what you wish with it a week after it’s been in the paper.
The contract unions protested in 2004 looks like this:
This Freelance Agreement (the “Agreement”) sets forth the terms and conditions of the agreement between CanWest News Service, a division of CanWest Publications Inc. (“CanWest”) and the above-named individual (“Freelancer”) for the services of Freelancer to create and supply written or other material (“Content”) to CanWest.
1. CanWest may, from time to time engage Freelancer to furnish Content to CanWest. This Agreement shall apply to all Content furnished to CanWest by Freelancer, without further formality, until terminated in writing.
2. Freelancer acknowledges and agrees that Freelancer”s engagement hereunder is on a “flat fee” basis. Nothing in this Agreement shall be interpreted so as to create the relationship of employer/employee between CanWest and Freelancer, which shall be that of independent contractors. Freelancer acknowledges that Freelancer shall be solely responsible for all necessary deductions and remittances whether for income tax purposes or otherwise in connection with the compensation earned hereunder. Freelancer agrees that the Content, this Agreement, and the services of Freelancer are not subject to any union or collective bargaining agreement, and will not become so subject.
3. Freelancer hereby irrevocably grants and assigns to CanWest all rights of every kind in and to the Content (including copyright), and agrees that CanWest shall have the right to exclusively use and exploit the Content in any manner and in any and all media, whether now known or hereafter devised, throughout the universe, in perpetuity. For greater certainty, Freelancer shall have no right to re-sell or re-publish the Content without CanWest’s express written permission. CanWest shall be entitled to edit the content, and Freelancer hereby waives in favour of CanWest and its assigns, all “moral rights” in and to the Content. Nothing herein shall obligate CanWest to use or publish the Content in any manner. The rights granted hereunder may be freely assigned or sub-licensed by CanWest to any third party.
4. Freelancer represents and warrants that the Content is wholly original to Freelancer, that Freelancer has the unimpaired right to convey the rights granted herein, and that the Content shall not infringe upon or violate the rights of any third party, whether personal or proprietary, including copyright. Freelancer hereby indemnifies and holds harmless CanWest from and against any and all damages, or liabilities arising out of a breach by Freelancer of this Agreement or any of the foregoing representations and warranties. Freelancer’s rights and remedies hereunder shall be limited to the right, if any, to obtain damages at law and Freelancer shall not have any right in such event to terminate, rescind, enjoin or restrain any of the rights granted to CanWest hereunder.
5. This Agreement shall be governed by the laws of, and shall be subject to the jurisdiction of the courts of the Province of Ontario and Canada applicable therein. Either of CanWest or Freelancer may terminate this Agreement on thirty (30) days written notice, provided that CanWest shall retain all rights in and to all previously provided Content. This is the entire Agreement between the parties.
In a nutshell:
- We have all rights to your content. We can sell it, make a book out of it, put it on posters or make a movie out of it, and we don’t have to pay you nothing. We can also replace it with an advertorial that says you endorse Ron Popeil and everything he does, and there’s nothing you can do about it. You can’t even sell your story elsewhere, ever. Suck it.
- A pointless anti-union clause. Ironically, the only reason freelancers would join a union would be to stop abusive contracts like this one.
Finally, the new contract, obtained from a reliable source inside The Gazette, is as follows:
Fee: Fee card (attached hereto and incorporated herein by this reference) subject to change from time-to-time without notice and subject to separate negotiation for non-standard length assignments
Media: All media now known or hereafter devised, including without limitation The Gazette and all CanWest Properties (meaning entities that are related and/or associated and/or affiliated to The Gazette including without limitation National Post, FPInfomart, CanWest News Service, all broadcast media owned and/or programmed by CanWest, CanWest newspaper chain, Canada.com (“Base Use”) and any and all third party online, digital and optical media (“Electronic Use”), and any and all third party print, broadcast, online, digital and other media and the right to repurpose and/or resell in any media worldwide (“Commercial Use”)
Add’l Terms: [See Revenue Share – Paragraph 4]
1. In consideration of the Fee above-mentioned, Freelancer grants to The Gazette the express, irrevocable and exclusive right to use the Content, for the Term in all Media throughout the Territory. The Gazette shall be entitled to edit, use, modity and publish the Content in any manner and/or form, and Freelancer hereby waives in favour of The Gazette and its assigns, all “moral rights” in and to the Content as such rights may now or hereafter exist whether by legislative enactment or otherwise at law or in equity. Nothing herein shall obligate The Gazette to use or publish the Content in any manner. The rights granted hereunder may be freely assigned or sub-licensed by The Gazette to any third party.
2. Freelancer represents and warrants that he/she will use best efforts to ensure that the Content is wholly original to Freelancer, that Freelancer has the unimpaired right to convey the rights granted herein, and that the Content shall not infringe upon or violate the rights of any third party, whether personal or proprietary, including copyright. Freelancer hereby indemnifies and holds harmless The Gazette from and against any and all damages, or liabilities arising out of a breach by the Freelancer of this agreement or the foregoing representations and warranties. Freelancer’s rights and remedies hereunder shall be limited to the right, if any, to obtain damages at law and Freelancer shall not have any right in such event to terminate, rescind, enjoin or restrain any of the rights granted to The Gazette hereunder. Notwithstanding the foregoing, to the extent the Freelancer has used best efforts as required pursuant to Paragraph 2, then The Gazette shall defend Freelancer in any defamation action concerning the Content to which Freelancer is named as a party.
3. Freelancer expressly and irrevocably represents, warrants, acknowledges and agrees that: (i) Freelancer’s engagement hereunder is on a “flat fee” basis; (ii) that the legal relationship between Freelancer and The Gazette is that of independent contractors; (iii) that Freelancer’s Content and services hereunder are not now, and will not become, subject to any union or collective bargaining agreement; and (iv) Freelancer is not an employee of The Gazette. Accordingly, The Gazette shall not be required to make any deductions from the Fee payable to Freelancer hereunder and Freelancer is not restricted from rendering services of any kind to any third party.
4. In addition to the Fee above-mentioned, The Gazette agrees to pay to Freelancer, Fifty Percent (50%) of the gross receipts received by The Gazette from syndication of the Content in Commercial Use. The Content is “syndicated” in Commercial Use when it is sold by The Gazette to third parties individually, and not pursuant to the Base Use or the Electronic Use in which circumstances no additional compensation is payable.
5. This agreement shall be governed by the laws of, and shall be subject to the jurisdiction of the courts of the Province of Ontario and Canada applicable therein. Either of The Gazette or Freelancer may terminate this agreement on thirty (30) days written notice, provided that The Gazette shall retain all rights in and to all previously provided Content. This is the entire agreement between the parties.
Some specific notes about the major changes:
- The attempts to expand CanWest’s publishing rights stems from a conflict that developed between newspaper publishers and freelancers. Newspapers would put their articles online, include them in searchable digital databases, and offer them as part of archives. A lawsuit against the Globe and Mail went all the way to the Supreme Court, and has prompted newspapers to change their freelancer contracts. But instead of being specific (which got them in trouble in the first place), they’re making general statements, including media which haven’t even been invented yet to avoid having a similar situation in the future. As a result, the contracts look and sound far over-reaching, demanding everything short of (and sometimes including) copyright.
- Using the Province of Ontario may make sense for CanWest as a whole (though they’re supposed to be based out of Winnipeg, they’ve basically moved all their operations to Ottawa and Toronto). But for a contract between a Montreal newspaper and a Montreal freelancer, it’s kind of silly.
- The offer to defend freelancers in court is heartfelt, though it should be pointed out that the paper itself would almost always be named in such a lawsuit, so it would involve itself either way.
- Moral rights are tricky. On one hand, a freelancer should be able to expect that their work won’t be so altered as to be unacceptable to them. At the very least, if a story is changed so much that they can no longer stand by it, they should be given the option of having their byline removed just as regular journalists do. On the other hand, newspapers should have the right to make small changes, cut for length and clarity, write headlines, attach photos and otherwise rewrite and restructure the work as part of the normal process of putting together a newspaper. But to simply demand a waiver of all moral rights is a bit too far.
To be clear, neither I nor other existing freelancers have been asked to sign this new agreement yet, so we are still governed by the previous one. That may mean it’s just being targetted to new freelancers who don’t know any better, or we may be getting uncomfortable emails in the near future.
UPDATE: The Travel Media Association of Canada, which represents travel writers (a major portion of freelance work), sent a letter to CanWest (PDF) expressing concerns about the contract. The response (also PDF) from CanWest MediaWorks Publishing President and CEO Dennis Skulsky says that the changing media environment necessitated the changes, and that freelancers are free to negotiate changes on a case by case basis.