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)