Copyright infringement: It's time to fight back against the 'silent sting'

Sandra Geere says freelances across the country are being exploited by wealthy organisations which are routinely selling on their work and pocketing the profit.

Many a freelance journalist has been grateful to their local newspaper for publishing that first article, the one that gave them a start on the road to being an established freelance.

If you write for local or regional newspapers you may already think that the rates paid are less than generous but have other reasons for accepting them and continuing to contribute.

But you might think again if you discovered that the same publication was routinely selling on your work without your knowledge or consent and pocketing the profit. This particular type of copyright grab or ‘silent sting’is costing freelances hundreds of pounds a year.

It works like this: The newspaper takes a whole issue and sells it to a syndication agency. From there its sold on again and again. The freelance creator will not receive any of this money. Unless they or one of their friends spots their work by chance on a website they will remain blissfully unaware.

It happens because the newspaper thinks that it can assume ownership of the freelance contribution where no written contract exists

OR

The newspaper ignores a written contract even though no licence for web use was granted and the freelance does not know about it

OR

The newspaper reproduces the freelance contribution on its archive web page claiming that it has an automatic right to do so

OR

The newspaper has no mechanism in place to filter out freelance contributions even when the freelance contract is FBS rights, single use only.

It is difficult to accept that the latter might be an oversight, as one deputy editor recently claimed. He told the complainant that after speaking to the newspaper’s lawyer he thought that the complainant had ‘opened up a can of worms’and admitted that the lawyer was furious with the newspaper – not surprising in the circumstances. In this particular case there was a clear written contract which stipulated First British Serial rights, single use only.

Unauthorised sales

These unauthorised sales also have implications for syndication contracts that the freelance may have signed. This will have involved declaring when and where an article has already been published.

If it is discovered that the information given is inaccurate or misleading, the syndication agency could, in theory, terminate the contract. In reality, they are aware that these copyright grabs take place but do expect to be kept informed; difficult to do if you are in the dark yourself.

There are other forms of copyright infringement that are not always immediately obvious. In another recent case, a magazine switched from a paper version to an online version and the editor made back issues of the print version available online.

The freelance contributor complained on the grounds that the contract between them did not include web use.

Initially, the editor claimed that they had done nothing wrong, but when pressed took legal advice. The freelance eventually received payment and was told that as the situation was ‘ambiguous’their lawyer had advised that payment be made for web use.

Claims for infringement of copyright can be made up to six years after the copying of the original work.

Freelances need to be alert to copyright infringement and know what to do when and where it occurs. At the moment there is a lot of money being made by big, wealthy organisations off the backs of hard-working freelances who are being cruelly exploited. The time has come to fight back.

If you are a freelance and think that your copyright has been infringed, then in the first instance contact the editor who commissioned the work and discuss the matter with them, as problems can often be resolved amicably. If this doesn’t work you should seek the advice of a qualified copyright law specialist.

National Union of Journalists members can receive support and advice from the NUJ Freelance Office (020 7278 7916 email info@nuj.org.uk www.nuj.org.uk).

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