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Good news for freelancers, but the fight goes on

The recent Supreme Court decision in favour of freelancer Heather Robertson is a victory in establishing that publishers can’t take a freelance article and republish it in online databases without the freelancer’s consent and without paying him or her for the re-use. (To read the full award, go to http://scc.lexum.umontreal.ca/en/2006/2006scc43/2006scc43.html.)

The decision establishes the freelancer’s right to be paid when any creative content is re-used by the buyer in a way other than originally intended.

“But the fight still goes on to ensure writers and others are paid properly and adequately for those re-use rights,” says Lise Lareau, president of the Canadian Media Guild, which represents freelancers at the CBC.

Robertson’s mammoth legal case begain in 1996, before the internet was in high gear, after two articles she wrote for the Globe and Mail were reproduced on two databases, without her explicit permission and without compensation.

Since that time, it has become commonplace for re-use rights to be included in freelance contracts. But because freelancers are viewed primarily as independent contractors and have relatively little negotiating power, re-use fees are often waived or signed off for little additional money. Most large newspaper and magazine publishing conglomerates in Canada try to get the broadest possible range of use out of any freelancer’s work, often at no additional cost.

“What this ruling really means is that those of us who represent freelancers have an additional tool to use when fighting for real money for our members in return for re-use rights,” says Don Genova, CMG’s freelance branch president. “But re-use is tough to negotiate.”

In the last round of contract talks between the Guild and CBC, the CBC rejected the idea of specific pay for re-use, after much discussion. The final agreement included a 13.5% increase to freelance rates over the life of the contract in exchange for CBC’s right to re-use material on all of its media platforms.

But if the Corporation wants to re-purpose a freelancer’s contribution outside of its original context ? say, take a segment out of a show it was originally designed for and use it in something else — then the CBC must pay an additional fee of no less than 10 percent over minimum rates. “The Guild succeeded in enshrining the principle of the Robertson award a full year before the Supreme Court issued its ruling,” says Lareau.

And, under the CBC-CMG contract, the freelancer retains the copyright to the work, which means he or she can resell it to other media outlets.

“With or without the Supreme Court ruling, freelancers are in a better bargaining situation if they’re covered by a union,” says Lareau. “The fact remains, though, that most freelance work in Canada is done outside the realm of a union contract. All of us in organized labour have to do everything we can to help our freelance colleagues obtain collective bargaining rights.”

For more information contact Freelance branch president Don Genova at freelance@cmg.ca, or Lise Lareau at lise@cmg.ca or by calling 416-591-5333 or 1-800-465-4149.

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