| Newspaper
archivists and executives are beginning to come to grips with the reality
of the recent Supreme Court ruling regarding The New York Times Company,
Inc., et al., Petitioners v. Jonathan Tasini, et al. Freelance writers
anticipate an entirely new economy with the Tasini decision making
it illegal for the publishers that purchase their work to re-use it in
different formats without permission and compensation. Many news publishers
delight in the idea that the decision protects the "complete work," giving
them a bridge to new publishing formats and a future for their content
protected by law.
Researchers in
all fields should know that now, more than ever before, online news archives
do not contain the full work of any newspaper. Who knew that for all these
years searchers of the Washington Post have never, ever accessed
a freelance article written for that paper, because the Post has
never made freelancer material available online?
Faced with one
of the most demanding production schedules of almost any industry in the
world, newspapers must cope with dour projections by industry analysts
for the economic future of their traditional product, while facing a future
migration at some indeterminate time to an electronic product, which at
present has proven almost universally unprofitable. Recent events force
them to look straight at typical freelancer rhetoric such as this, found
in a quote from the National Writers Union profile of one of the original
Tasini
litigants, David Whitford: "It bugged me to know how much foraging in KI
[Knowledge Index] was costing me, and yet somebody else was getting paid
for my work. I felt robbed."
In an effort to
show good faith, newspapers are trying to clean up their archives, but
find themselves in the process simultaneously accused of trampling on freelancers'
rights and "deleting the historical record." Having their past practices
found legally in error, newspapers are now being asked often, pleaded
with to leave everything just like it was. Some online vendors report
receiving requests from freelance writers asking them not to remove the
writer's articles from their products.
Lawyers do not
predict a speedy recovery. Speculation about the damage phase of Tasini,
at which point the trial court finally decides the case on the grounds
the Supreme Court has set, varies widely from assurances that the damages
to be determined will be miniscule, to concern by corporate copyright attorneys
that class-action lawsuits following the conclusion of the original case
will try to plumb the depths of financial resources of the big newspaper
chains. The famed "First Tier" of prestigious newspapers The New York
Times, Christian Science Monitor, Washington Post, Wall Street Journal,
Chicago Tribune, and Los Angeles Times face the brunt of the
financial challenge.
Just like commercial
online sources, newspapers are an aggregated product. Although some have
more original content than others, all publish some content that
has been bought or been freely submitted, e.g., Letters to the Editor.
Every hometown newspaper has guest editorials written by people in the
community, advice columns like "Dear Abby" and "Ann Landers" purchased
from big syndicates, and articles bought from the Associated Press or other
wire sources that cover national and international news. It would be difficult
for any newspaper to cover wide-ranging, diverse subjects every day using
only its own in-house staff of reporters. So a huge portion of the content
of many daily papers does not belong to them. It takes editorial
skill to put newspapers together every 24 hours with content that doesn't
contradict itself, provides an interesting read, fits on the page in an
allotted space, offers the best possible update on current news, and has
appealing headlines and blurbs.
Newspapers began
the first step of moving to an electronic product with the recycling of
content for sale in the online market. This process started during more
than a decade of instability, when electronic distribution began to move
faster and more efficiently, but not more profitably, than print. Almost
all newspapers have a Web presence, though publishers recognize that Web
offerings are not yet financially profitable. It was revealed last spring
that even The Wall Street Journal's electronic product [http://www.wsj.com],
which many believed to be solvent because it has always charged an annual
subscription fee, has rarely been out of the red.
That's why news
managers continue to focus on the print product, to the dismay of many
who promote a better integration between print and online news products.
Tom Johnson, of Boston University's Institute for Analytic Journalism,
says, "My main point is not about the time and dollar costs of purging,
or even the 'loss of the historical record' argument. It's that the newspaper
industry still can't see beyond the concept of 'today's artifact' be
it an individual story, which has various rights of ownership, or to the
physical newspaper that gets plopped on the driveway. To see beyond those
to the idea that our product is ideas and content...."
Flashback
So what was it
like "back in the day" 15 to 20 years ago when newspapers started selling
articles online? New electronic library systems were being installed, but
there was no resale profit motive in these early automation efforts. In
fact, newspapers at first rejected the idea of reselling content what
if the competition began accessing stories? What use might people make
of newspaper stories bought online?
Newspapers just
wanted access to their own content in some faster, more dependable way
than unfolding clippings filed in manila envelopes. A typical news library
file would be stuffed with clippings out of chronological order, missing
staples and tape connections to continuations that may or may not have
been clipped originally. Corrections would not get appended to all copies
of a story. Clippings often got put back in the wrong file folder. Files
would slip down behind reporters' desks, or worse, simply disappear and
have to be re-created. Some news libraries kept separate files of individual
writer's bylined work. Some even kept work written by freelancers who were
frequent contributors.
Professional libraries
began to emerge out of the old newspaper "morgue." To them fell the responsibility
of compiling the newspaper's digital replica every day for the company's
electronic library system. As enterprising vendors contracted to receive
spin-off copies of these daily library submissions and aggregate them into
news file offerings in online reference systems, the newspaper library
was dramatically transformed.
In an epic change,
the new online archives for news publications made articles available for
the first time to an entirely new constituency of readers. Online distribution
of daily news content in the late 1980s and early 1990s gave participating
news organizations and their writers wide national and international exposure.
Editors could check out reporters' work before interviewing them and reporters
could become known outside their communities. Researchers for the TV networks
could go online and find just the right journalist from around the country
to interview on early morning news shows.
But in the mid-
to late 1980s, electronic file storage wasn't cheap. Almost all archives
had lists of what was saved digitally. There were strict rules about what
would and would not be saved in the electronic library. A lot of thought
and justification went into putting those lists together. The criteria
at the time was, "How often will we need to retrieve this?" Many papers
perform a public service by providing articles and research to the public
and these needs were also considered. "Keep the stamps and coins column?
Astrology? Questions and Answers for Condominium Owners? Gardening?" Small
papers with tight archiving budgets often decided not to save any national
or international news that could be retrieved from other sources. Some
saved "B Section" (local news) stories only.
Early incarnations
of archiving software capable of storing and retrieving files as large
as those of a daily newspaper, such as the Canadian product, QL, selected
by Knight Ridder newspapers in the U.S. in the early 1980s, did not offer
a wide choice of separate fields for data. There were no options in the
software for a field that would filter out tagged stories the publisher
might want to delete from the main digital file sent to vendors, which
even the most rudimentary content management systems do today.
No one used the
Internet. Files were transmitted with communications software over telephone
lines and no one had a URL. Research in online systems was done with proprietary
software using phone connections. There was no e-mail or Internet access
in most newsrooms until the mid-1990s.
The news library
became a profit center for the first time. Instead of just maintaining
clipping and photo collections in some beat-up file cabinets, professional
news librarians and researchers began to be able to offset a part of the
high costs of running the library in a news operation with royalties from
online sales. They became voracious consumers of online information sources,
as well as providers of content, a perspective that has served them well
in negotiating content license agreements for the library's use, as well
as in negotiating content sales to vendors. Online research provided by
the library staff gave amazing depth and credibility to news reporting
and editing.
One transition
that newspapers did not make as a result of online distribution was full
awareness at all levels of the organization that a watershed was taking
place. It may seem surprising to researchers who use online files every
day, but news organizations, with their intense focus on preparing the
next day's publication, were for many years mostly unaware, and to some
extent unimpressed, by the implications of online distribution. Even after
daily news began being shoveled up onto Web sites, newsroom editors continued
to order hundreds of extra print copies of special stories or award-winning
articles, in expectation of requests from outside journalists.
Freelance Writers
Why didn't newspapers
look more carefully at their freelancer arrangements from the beginning?
Because these newspapers figured if they paid for the article, they had
the right to use it. According to president and CEO of the Newspaper Association
of American, John F. Sturm, quoted in a June 2001 NAA press release issued
after the Tasini decision, "There's a line in our amicus brief
which we joined in with several news companies and trade associations
that, I think, sums it up well: 'Today's New York Times is today's
New
York Times regardless of whether it is the early edition, the late
edition or an electronic edition. Unfortunately, a majority of the Court
did not agree.'"
Online distribution
was cumbersome and not the universal entity that it is today. There was
a lot of activity in the late 1980s to aggregate papers online LexisNexis,
Vu-Text, and DataTimes, with both of the latter now gone but no one really
knew where it was all headed. Vendors began to ask for Internet distribution
rights. News publishers, not fully understanding the potential significance,
signed agreements that said, "Sure!"
Content from news
syndicates such as the Associated Press, Universal Press Syndicate, Scripps-Howard,
and others was usually, though not always, restricted from redistribution
to online vendors. News organizations receive a steady flow of material,
like a TV news feed, from these sources. Purchase was made through annual
contracts with the distributors. Automated since the early 1980s, the news
feed is available all the time on any newsroom desktop. Newspapers run
articles from syndicates all the time, paying annually for a package designed
especially for their use a certain group of columns, a column plus comics,
a news feed only, news feed plus other regular feature stories, etc.
Syndicated columnists
such as Ellen Goodman and George Will, who appear on or near most editorial
pages, were not routinely redistributed, but in the mid-1990s, when Universal
Press Syndicate asked various online vendors to search for the syndicate's
columnists among the content supplied to them by newspapers, thousands
of columns came up. According to Michael Jesse, library director of the
Indianapolis Star Library, quoted on the news librarians' Listserv, Newslib,
"Our industry has been pretty sloppy for the past decade or so that we've
had electronic archives. Many newspapers sent their entire feeds to Nexis,
etc., without even blocking out the wire and syndicated stories."
Freelance articles,
on the other hand, were piecemeal purchases. While it is not unusual for
the top-tier newspapers to receive freelance submissions from prestigious
writers, the average newspaper buys most of its freelance content for its
Travel and Sports sections, along with Entertainment, Food, and Lifestyle.
Some have networks of writers who function as correspondents in particular
areas of coverage, such as international news, e.g., writers on the scene
in certain locations, or perhaps a local pediatrician writing a weekly
column about child health issues.
Hearing freelancers
make their accusations about misuses of their content is unnerving, not
so much because newspapers didn't fully realize what was being done, which
most of the time was the case, as because the freelancers seem to attribute
the alleged misuse to some calculated profit motive lurking behind the
practice. This has never been the case. Newspapers have a pile of digital
copy to be organized each day, a pile that so overwhelms those whose job
it is to deal with it, picking up each piece and asking, "Hmm, shall we
keep this one for posterity?," is not even remotely possible. From the
perspective of one who works with the grinding reality of archiving news
stories each day, it is not hard to see how easily the situation got out
of hand. It has prompted some to say, "Hey, how come no one spoke up sooner?"
Freelance writers did from time to time come across articles in commercial
online databases that they had originally sold to newspapers and magazines.
These discoveries got them to wondering if anyone else was making any money
off said articles, leading the authors to call the original publisher.
The original Tasini case was filed in late 1993 by 11 writers who
had this precise experience. (Five later dropped out of the suit.)
For years now,
most news publications have filtered the content being recycled commercially.
After mulling over the Tasini filing 1994, those publishers who
had not already taken measures to protect their content stopped sending
anything outside the company for which redistribution rights were not owned.
Throughout 1994, awareness began to seep through the industry that it needed
to pay more attention to freelance articles. The Associated Press, a syndicate
of news content supported by member papers, began to tell publishers it
would charge for content that got passed on and re-sold to online vendors.
This jump-started a number of newspaper publishers into taking a closer
look at their sources.
By 1998, most papers
had freelancer agreements in place. These agreements usually give a freelance
writer the opportunity to stipulate whether the piece they've sold is for
one-time use only in the print publication, for use in the print publication
and
on the newspaper's Web site, or for the previous two options AND as
part of the paper's daily transmission to its commercial vendors. Some
agreements provide an across-the-board option for all electronic distribution.
News archivists
now keep lists of which authors consent to redistribution and which don't
and restrict articles from flowing on to vendors for re-sale as needed.
If a freelance writer doesn't want his or her material redistributed, it
isn't. Some newspapers began to pay a slightly higher rate for electronic
distribution; others crafted wording that said if the freelancer did not
agree to give the publication redistribution rights, the publication would
not buy future articles from them.
Value
It's no secret
that the "disconnect" between the parties to the lawsuit(s) stems from
dissenting views about value.
What defines the
value hierarchy to news executives? Fresh, breaking news often called
"hard news" especially if it is something no one knows about yet. Next
come investigative pieces that have required considerable time, money,
and skill to uncover and execute. Beyond those, it all depends. Newspapers
owned by large corporations have the added advantage of drawing on reports
from writers in Washington, D.C., and New York and foreign correspondents
covering news in all the major cities of the world, as well as writers
and photographers at the Olympics and every other great worldwide event.
Some of these papers could, with the exception of home-baked local news,
publish an entire paper with the content available to them through their
internal networks.
Understanding the
betrayal that freelancers have felt is more real to many newspapers executives
than they may want to admit. The agreements signed early on that let online
vendors experiment with entrepreneurial Internet activity have come back
to haunt newspaper executives. Vendors, on a high from new marketing opportunity
on the Internet with the Web, began to sell aggregated files at a profit
to other online distributors. Some were also online vendors working along
the same model as conventional vendors. Others were intermediaries that
sold news content to other information vendors. Newspapers began to lose
control of their content just the way the freelancers had. Suddenly their
articles would surface in new for-fee Web products, with no money ever
having changed hands. Even though the situation has again changed in favor
of the publishers, who have begun restricting re-sale of their content
to "third party vendors" in their license agreements, the Web still presents
a constant challenge to publishers to make sure no site has picked up any
of their articles illegally.
Only two or three
newspapers can claim that articles are never redistributed without author
permission. In addition to the Washington Post, a few papers, such
as the Providence, Rhode Island, Journal-Bulletin, re-thought distribution
plans and, at the advice of their lawyers, went back early on and deleted
freelancer material. So the most expedient course of action for the others
appears to be identifying the material that should not have been sold in
the first place, showing good faith by permanently removing the material
from the databases. After identifying certain "early year" blocks of electronic
databases containing material in violation of copyright law, a number of
news library directors have decided to take those years out of online circulation
altogether.
The Urge to Purge
The idea that
a valuable historical record will be lost if newspapers delete content
from their files is tenuous. On the other hand, when a state as large as
California loses major coverage of one of its major metropolitan areas,
as when the
San Diego Union-Tribune pulled 15 years of its entire
archive (freelance and internally produced), leaving no history of that
area prior to January 2000, this could be viewed as an information crisis
of sorts. At this point, a disconnect exists for publishers trying to do
the right thing by freelancers as well as for consumers of the electronic
product
For most publishers,
freelance content is generally peripheral. No Travel section editor wants
to lose freelance submissions from writers who may have become trusted
friends, and Sports sections do depend on freelance articles about covering
local events that would otherwise stretch staff resources.. But perhaps
the time to stop being polite has come. The most valued pieces of daily
news content are rarely purchased from a freelancer. Deleting a travel
section story from a regional newspaper and taking out an article some
luminary wrote for The New York Times do not equate the same value.
Routine database
content maintenance in the majority of newspapers includes examining what
will stay and what will go. In a recent survey of selected news librarians,
95 percent said they now filter out freelance content.
Some librarians
are considering "the citation solution." This would involve keeping a bibliographic
reference to a freelance piece where the full text has been removed from
a database, but still giving the essential locator information of headline,
author, date, and page. Some have considered adding a short summary of
the article. Legally, this idea has been rejected by most on the grounds
that it is not only positive admission that a copyright violation took
place, but it perpetuates that violation by continuing to make reference
to it.
Newspapers have
vast amounts of content. Typically, more than 6,000 stories go to database
vendors every month from a medium-sized newspaper; that's 150 to 200 stories
per day. The enormity of the file blurs the importance of any specific
piece. What kind of article would news database managers go back and retrieve
if it were missing? The ones perceived as having the most value are local
news, blockbuster staff-written stories, and investigative pieces. Often
these articles are checked by lawyers before going in the paper. If any
mistake is made in the wording and it goes to the online vendor, a publisher
will contact the vendor, the old article will be deleted, and a corrected
one put in its place.
The Newspaper Association
of America (NAA) asked international legal firm Debevoise & Plimpton,
business law experts who have worked on the Tasini case to offer
advice to publishers. They counsel:
Deletion of articles
is a painful step. Absent a retroactive grant of rights from freelancers,
however, deleting their contributions is the only way to cap liability
for infringement. Deletion is no panacea: freelancers may attempt to obtain
damages for infringements prior to the filing of their lawsuits and up
until the time of removal from electronic databases. The longer a contribution
is available in an electronic format, however, the greater the damages
that may be claimed. Moreover, failure to delete freelancer contributions
after the holding in Tasini may allow freelancers to argue that publishers
are knowingly disregarding the law and are liable for enhanced damages
for willful infringement (up to $150,000 or $300,000 per article, depending
on when an article was published and registered).
The completeness
of searching news has been a concern for news researchers and librarians
since the Internet became the world's most ubiquitous source of information.
Where, how often, and when is content archived, indexed, and redistributed?
As
news publications migrate to an electronic product, is there a way to preserve
every incarnation of a Web site news report that is constantly changing?
MSNBC made the decision a number of years ago to archive once a day. This
is typical of most Web sites and the situation for the immediate future
generally follows the model of print news archiving.
Revenue
Just the way online
vendors have figured how to aggregate content from different sources and
resell it as a single product, the profit for newspapers also lies in the
aggregated product either selling a group of newspapers or all the content
in one product never in the individual document. ProQuest (formerly Bell
& Howell Information and Learning, formerly UMI) aggregates over a
hundred newspaper files every day. ProQuest pays back a percentage to the
individual publications, but the real value for the purchaser which would
be an online distributor if the newspaper allows that kind of resale
lies in receiving all that news content in one format, ready to load onto
their online system. The buyer, another online system such as Factiva,
doesn't have to deal with going to each newspaper, waiting for them to
send their content, and having to reformat it
Out of the average
200 stories a day a newspaper generates, most articles can stay or go.
With such high volume, it makes very little difference to many publishers.
Some news database editors insert a note describing where on the microfilm
an article can be found if it is not available digitally in time to start
processing the next day's "paper." Some publishers type in missing articles
manually.
Once referred to
by the former head of Dialog Corporation, Patrick Tierney, as a "loss leader,"
news content has taken on new value in the immediate information flow of
the Web. Newspapers have vast amounts of fresh, daily news content to offer.
Even as current economic prospects present a bleak marketing challenge
for online news, current negotiating trends guarantee minimums and higher
royalty percentages than news suppliers have ever seen. The largest urban
papers have unique national and international coverage to sell. Regional
papers have valuable reporting on local issues from major sports teams
to construction projects.
Years ago when
Dialog decided for a brief time that it would not load full newspapers
anymore, but just the front pages of the B Section local news, the annual
Special Libraries Association Conference had an airing of the issue. A
researcher from First Boston stood up and said her job was finding online
news for investors about planning and zoning, construction projects, sewer
upgrades, and other local infrastructure issues from every regional paper
in the country.
As some newspapers
that have not already done so begin to filter out all but staff-written
pieces from their commercial database transmissions, concern rises about
loss of revenue from a reduced story count. This has played out as a big
issue for newspaper content sales. The license agreements with online publishers
do not typically specify how much content will change hands. At issue are
specifics such as the timing of the content's arrival and its currency.
Automatic searches run by the big online systems typically go through new
content early in the morning to fulfill automatic searches for corporate
intranets and researchers.
Although it is
now widely known that freelancers have a only a small piece of the action,
here is how it works:
When you get down
to the revenue value of any particular newspaper article, it's small, once
the reseller or aggregator takes its cut. Again, the newspaper can make
a buck because it has an aggregated file of each day's articles to sell.
But there is no stipulation in most agreements with online vendors about
the quantity of articles to be shipped. Coming from a newspaper, it goes
without saying it will be a lot thousands more articles than most monthly
publications. The royalty percentages each company gets from vendors are
protected under nondisclosure clauses in their license agreements, along
with the other specifics of the contract.
Let's just say,
hypothetically, that the newspaper gets 30 percent of the 80 percent of
the sale of its content, minus expenses, that the vendor has agreed to
share. Say the paper's combined vendor revenue is $20,000 a month in royalties,
a reasonable mid-range figure for newspapers on the whole. That would equal
approximately $3.23 per story. Some of the variables for the overall monthly
royalty are news publication name recognition, geographic location combined
with recognizable name, currency of the material, and the kinds of events
that may be unfolding in the community at any given time.
Unlike freelancers'
pieces, the pay newspapers receive for an article hinges on the use online
of a particular article. Eighty percent of articles transmitted in a month
might never again see the light of day. There are other royalty factors,
such as inclusion in special vendor search groups or products.
The publisher has
expenses too. It pays a staff of professional copy editors, it lays the
article out on a page, prints, and distributes it. The paper also has expenses
attached to compiling its digital edition. It pays a staff of people to
handle this. For most, the compiling is still labor-intensive, though content
management systems, also an investment, take some of the load off the human
processing. Many papers have from two to six full-time staff working on
the digital edition only.
Say the newspaper
follows the same model as the vendor, even though it has paid the freelancer
upfront by the line, word, or flat rate for the entire article. Depending
upon need and kind of article, newspapers can pay anywhere from $20 to
$300 per article. At 30 percent based on 80 percent of its own profits,
freelancers could expect to get around 60 cents extra per article on top
of what they have already been paid. It is obvious the value for the freelancer
lies in his or her initial negotiation, not in a percentage of online sales
through news outlets.
Compared to articles
from other kinds of publications, news articles are cheap. When sold to
consumers through the newspapers' own Web archives or through other low-end
online sources, each article may range in price from $1.50 to $1.95. A
few news Web archives are free.
Conclusion
Now, in the final
phases of what is known in the industry as the "Tasini decision"
or simply, "Tasini," most vendors are hearing from publishers about
what the publishers plan to do. Some are sending requests for the deletion
of specific blocks of data. The big aggregators can do that. A few vendors
can delete but retain the record, away from public access, in case the
publisher's decision changes over time. That is presented as an option.
In a recent survey of news librarians, 40 percent said they are purging
their files of any content for which their publication does not have redistribution
rights; 35 percent said they are waiting to see what happens with the Appeals.
Somehow the Tasini
decision has resulted in an oversimplification of newspapers' current and
future roles. It is not as clear and easy a question as, "Should we take
material out of our databases?" Newspapers have internal search services,
some set up purely for public service to supply an article or two free
to requesters and subscribers who remember seeing it and can't find it
now. Many have for-fee research services available to the public and to
businesses. How can it be explained that a portion of the material that
appeared in the paper belongs to them, but a lot of it doesn't?
And to come full
circle, almost all newspapers have internal electronic library systems,
from which this whole issue started in the first place. No one has deleted
published material from those systems.
What will be the
final effect of Tasini and related decisions on electronic access
to newspaper content? No one knows yet but everyone is worrying.
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