Copy rights
National newspapers have a history of intractable, internal disagreements. When I first read the papers relating to the dispute over ownership of copyright between the Guardian and the Observer on one side, and two of the papers' freelance contributors on the other, I found the familiar entrenched positions, harsh arguments and mutual incomprehension. But at least the parties, being who they were, expressed their views in vivid, even biting prose.
An early sign that we might be able to help the disputants come to an understanding was that the three members of the committee of inquiry, Maureen Duffy and myself under the chairmanship of Professor Jon Clark, found that we quickly agreed on what were the key issues and how they might be handled. That gave us confidence in examining the witnesses and putting forward proposals for discussion.
Underlying the committee's work were two principles. First, for any solution to be accepted, it must work with the grain. Freelance writers have strong views about the nature of their trade and what is necessary for their success. These should be acknowledged. Likewise newspaper publishers, entering the electronic age, have commercial imperatives which have to be accepted.
The second principle was that greater disclosure had a role to play. It would remove suspicion from writers' minds and give the publishers the assurance that consent to individual agreements would be informed. As a result, nobody would be likely to feel a few months later that they had somehow been exploited.
The difficulties arose because newspapers have moved on from simply publishing their daily tabloid or broadsheet. Now they go out simultaneously each night in a variety of formats. As well as the printed version, the publisher is also sending out material from each issue to syndication clients around the world, to on-line databases and to its own website. The old notion of the single use of a writer's work has become inappropriate.
In these new circumstances, the Guardian and Observer had sought to sweep up all rights in freelance contributions and the writers, represented by the National Union of Journalists, stuck to the position that single use was the essence of the transaction. Deadlock.
Work with the grain. Self-employed writers, like photographers, like computer programmers, like graphic artists, believe that their work forever belongs to them alone; it can willingly be rented out for profit, for long periods if necessary, but the authors wish to retain the freehold, or the underlying copyright. You can seek to persuade them that there is a price for everything, even for all the rights in their work but never in their hearts do they really agree. We asked the newspapers to accept this reality, and they have done so.
We also asked the writers to work with the grain. Nowadays newspapers need to be able to sell the whole issue to different types of customers; they cannot late in the evening start re-editing material to take account of a variety of copyright agreements with individual contributors. Multiple use has replaced single use.
But the newspapers should only acquire such rights as they require in order to satisfy their actual customers. Syndication agreements normally have a year's duration. Database rights are often non-exclusive. The rights that the newspapers acquire from their writers should mirror the rights which the newspapers in turn give to foreign newspapers and on-line database owners. The two sides have also accepted this approach.
Enhanced disclosure has helped in a number of ways. We urged that the terms of the newspapers' standard contract with writers, which is expected to apply to more than 90 per cent of cases, should be made widely known and be clearly explained before work starts. The NUJ, too, was interested to learn what was the exact nature of the newspapers' business with overseas clients and commercial databases.
To reinforce an up-front relationship, we asked the newspapers to specify their fees in two ways - so much for the old first use, so much for new, secondary, electronic uses. Moreover, the newspapers will keep writers' representatives informed of the relative size of the two streams of revenue. This can be done in a way which avoids yielding up commercial secrets.
When I was asked to help the Guardian and the Observer and their freelance writers resolve this dispute I was glad to do so because I believed that we might be able to construct a model which the whole industry could use. I feel proud of what we all achieved. It won't last for ever because communications technology is developing with such speed. But it will do very well for the time being. I commend it to others.
Andreas Whittam Smith was the first editor of the Independent, 1986 - 1994. He remains a director of the newspaper. He is also president of the British Board of Film Classification and chairman of the Financial Services Ombudsman Scheme.
What the committee recommended
Terms of the standard licence for written freelance contributions (all rights are exclusive unless explicitly specified otherwise)
1.Rights of use in all editions of the Guardian and Observer in paper form, including Guardian Weekly and editions printed overseas.
2. Non-exclusive electronic database rights, eg CD-ROM archives, Internet websites, on-line databases.
3. General syndication rights ("lifting rights") for 1 year.
4. Rights to licence the photocopying of cuttings for customers' internal information purposes, up to a specified number of copies.
5. In return for granting the above terms, the freelance will be paid an all-inclusive fee covering all the rights in 1-4 above. This all-inclusive fee will distinguish between a basic fee (for right 1 above) and an additional fee (for rights 2-4). This is intended to allow the parties to monitor future changes in revenue arising from rights 2-4 and to adjust the all-inclusive fee where appropriate.
6."Spot sale" syndication rights for 1 year, with a 50/50 split of revenue between the freelance and GNL.
7. All material covered by the standard licence may be re-used by freelances during the term of the licence, provided the Guardian Syndication Department is consulted to ensure that there is no conflict of interest.
8. GNL and the NUJ will negotiate a minimum all-inclusive fee rate (see clause 5 above) for written freelance contributions. The same proportions between the basic fee and the additional fee should be applied to all fees negotiated above the minimum.
Additional recommendations
1. All freelances who have signed copyright agreements with GNL will have the right to sign the new standard licence terms.
2. Subject to commercial confidentiality, GNL will make available annual information showing changes in the percentage of revenue coming from all sources of non-copy sales of the Guardian and the Observer, eg general syndication agreements, CD-ROMs, Internet websites, spot syndication sales. This will allow any major changes to be monitored and, where appropriate, reflected in changes in the all-inclusive fee (see above, clauses 5 and 8 of the recommended standard licence terms). The annual information will be made available to the NUJ on a confidential basis.
3. In the event of a dispute between an individual freelance and GNL, a joint panel comprising the NUJ General Secretary and the Managing Editor (or their nominees) will attempt to resolve the matter amicably.