Copyright Treatment of Freelance Work in the Digital Era

Santa Clara High Technology Law Journal, Dec 2003

By Giuseppina D'Agostino, Published on 01/01/03

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Copyright Treatment of Freelance Work in the Digital Era

Santa Clara High Technology Law Journal Copyright Treatment of Freelance Work in the Digital Era Giuseppina D'Agostino - Giuseppina D'Agostinot Withoutformalpetition Thus stands my condition: Iam closely blocked up in a garret, Where I scribbleandsmoke, And sadly invoke The powerful assistanceof claret... -Thomas Brown, The Poet's Condition' I. INTRODUCTION More than three centuries ago, Thomas Brown, a graduate of Oxford,2 wrote about the debt-ridden fate of London hack writers. Patron-less, they wrote for money. As Philip Pinkus details in his elaborate study of the colorful and skillful Grub Street 3 writers, "there were arid moments when they could not squeeze a shilling from their publisher or an ounce of credit from the tavern-keeper." 4 Whilst their works have been at times cast as mere "doggerel" as they were not the Swifts or Popes of the era, the seventeenth century hacks revealingly dispel the dire condition of the common writer. Writing in destitute times, these writers deliberately chose subjects, which appealed to their readers, from politics to thorny themes like marriage. And although hacks like Thomas Brown led austere lives, they still dared t Lecturer in Law and DPhil Candidate, St. Peter's College, University of Oxford; Barrister & Solicitor, Law Society of Upper Canada; MStud in Legal Studies, St. Peter's College, University of Oxford; LLB Osgoode Hall Law School; Hon BA York University. The author is most grateful to David Freedman for his constant support and insight in bringing this work to completion. 1. PHILIP PINKUS, GRUB ST. STRIPPED BARE: THE SCANDALOUS LIVES & PORNOGRAPHIC WORKS OF THE ORIGINAL GRUB ST. WRITERS 160 (1968). 2. Id. Thomas Brown was 'the most renowned of the Grub Street hacks.' Born in 1663, he was educated at Christ Church, Oxford. 3. Id. at xi. Grub Street refers to a particular time and place: London at the turn of the seventeenth century. "But Grub Street is itself a metaphor, evoking the eternal spirit of the hack writer," PINKUS, supranote 1, at xi. 4. Id.at 14. to dream and aspired for something better. Today, Thomas Brown is the twenty-first century freelance writer. In part because they are not the Rushdies or Kings of our times, freelancers illustrate the current plight of the aspiring writer as they are subject to similarly unfavorable economic, social, and legal conditions. This Article examines the current legal state of freelancers as they attempt to earn a living through their writing. To do so, I will begin to explore the angst of freelancers throughout the history of the western world in relation to copyright law. I argue that copyright law, which was purported to address the needs of the author through protection of works and thus create incentives to produce and bolster societal well-being, has insufficiently met these objectives. In practice, freelancers have typically become at the behest of publishers-the real right holders-receiving a disproportionate benefit. The current proliferation of digital technologies expands the publisher's exploitation powers. Increasingly, publishers exploit freelancers' works not only in print form but also digitally, often by making them available through their own Web sites or by selling them to third party databases. Freelancers argue that they receive no notice, give no consent, and obtain no payment for the exploitation of their works through these new digital uses. In justification, publishing conglomerates seize on ambiguous contracts5 previously made with their freelancers to read in allowable new uses. The central issue is whether the authors' contracts, by which copyright is transferred for publishers to print their works, contemplate electronic publication rights. For staff writers, it is a moot point, 6 but for freelancers who base their livelihoods on each new contract, the issue is a vital one. This is not solely an issue of contract law. While contract doctrines may be material, the question of freelancers' transfer rights necessarily implicates copyright law. Copyright law therefore requires a management system that is attuned to such intangible goods. This issue similarly concerns copyright law and its 5. Many such contracts are oral or 'handshake' contracts as per the publishing industry custom, but there is evidence that this is changing; Bernie Corbett, FreelanceBriefing Paper, THE FREELANCE, July, 2000, at http://media.gn.apc.org/fl/0007grab.html (last visited Dec. 12, 2002) (detailing various British and American publishers which have sent legal letters to their contributors asking for absolute rights to their works). 6. It is beyond the scope of this Article to address employed writers which in most jurisdictions fall under the purview of separate legal doctrines; in the United Kingdom, the Copyright, Designs and Patent Act provides that works produced during the course of one's employment belong to the employer. Copyright, Designs & Patent Act, 1988, ch. 48, ยง 11(2) (En (...truncated)


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Giuseppina D'Agostino. Copyright Treatment of Freelance Work in the Digital Era, Santa Clara High Technology Law Journal, 2003, Volume 19, Issue 1,