Nevertheless - wake up! - it's as important as... well, let's not go overboard, right now: as important as the Statute of Anne. [1]

Let us for a moment imagine a parallel world in which that 1710 law, which laid the basis for publishing in the English-speaking world, had never happened. We would now be meeting in Stationer's Hall.

Brother Stationers, our next business is the proposed amendment to our Guild's rules of apprenticeship for the 13 boys of good character who will permitted to produce Web pages next year. We must decide this with dispatch, for following on the agenda is the enquiry into very serious allegation that Master Johnson, of St Paul's Church-Yard, has charged less than the statutory one hundred and nineteen new guineas per copy for The Tempest, A Midsummer Nights' Dream, and sundry other works by an author whose name is now sadly lost. Since, Brother Stationers, we are entrusted with perpetual ownership of the great works of our age, we must be responsible in ensuring that they are preserved and not cheapened.

Not that I'd want to put too many ideas into the heads of the lawyers from the Newspaper and the Periodicals Publishers' Associations...

If the Statute of Anne had not moved towards recognising and rewarding the rights of authors, and the French Revolutionaries had not promoted of les Droits d'Auteur [1a] (high sentiment sounds so much better in French!), we would probably have no newspapers, no periodicals, no scientific publishing and thus probably no internet to worry about.

But it did and we do. And we shall go to confusion together that are makers of idols. [2]

The laws which have allowed authors, artists and publishers to flourish are based on fixations of the works which we create and distribute. How on earth are we to guarantee fair rewards for our respective efforts when they are written on 100% recycled electrons?

Let me state my bias: I am interested in a world where cultures and democracy are supported by open access, for all, to a wide variety of high-quality, independent-minded news, entertainment and art. That, and as a freelance journalist I must declare a financial interest: and as soon as you write down or otherwise record a response to all this you acquire the same interest.

Seven multimedia misconceptions

I identify seven major misunderstandings of authors' rights in the new media at large in the world. In the spirit of multimedia, I shall recklessly mix ideas emerging from the worlds of computing, publishing, and the visual arts. And in recognition of the work of the nerds, we'll start with point zero:

0: Information wants to be free

Discussions of the ownership and control of the means of cultural production on the net were, a couple of years ago, largely carried out among information junkies who have day-jobs. The strongest proponents of the slogan "information wants to be free" seem to survive on student loans, trust funds, and research grants. Their academic institutions claim ownership of everything they produce and, if funded by the US government, then (by legal accident, it seems) grant an open-ended license for its use. They assume that use of their colleagues' information is free at the point of use through university libraries.

No wonder these individuals tend to regard the supply of information as something more like the supply of clean air than like the supply of snacks, socks and facts.

John Perry Barlow, notorious as the ex-Mormon ex-rancher Grateful Dead songwriter, made the slogan "information wants to be free" popular. His position, as expressed in his essay "Wine without Bottles", [3] is in fact subtly but essentially different, and it is:

1: Product is dead; performance is all

John Perry Barlow makes a very satisfactory living as a lecturer. He has all the plane tickets that he can eat. The Grateful Dead kept themselves well-supplied with their every want through live performance, and encouraged bootleg recordings of those performances as promotion to expand their fanatically loyal customer base.

No wonder Barlow imagines everyone else can operate in the same way. I think we can all agree, though, that there's a problem with a world-view which awards no intrinsic value to the artefacts which define our cultures, whether they be a film by Bergman, the contents of Hello! magazine or a Sarah Lucas sculptural outrage.

2: Give away the product - just think of the after-care income

This concept, the fundament of military procurement, is expressed with marvellous cynicism in Robocop II. In the world of new media, it's proposed by Esther Dyson, the hugely successful editor of software industry newsletter Release 1.0. She also makes most of her excellent living from performance, not product. At the time when Netscape gained an impressive stock market valuation on the basis of giving away its only product, she proposed [4] this as a model for new media publishing.

No wonder.

But where, pray, is the after-sales income for an article in Hello!, a budding Sarah Lucas, a detailed assessment of the political and economic prospects for the Democratic Republic of the Congo, or this?

3: Everything will be advertiser-supported

Perr-lease. I'm like, it's totally silly.

Note that in the new media, all advertising is intimately connected with the content: there can be no separate "news hole" because that implies an "advert desert", and in hyper-media any "desert" might as well be in another universe, because you can't get there from here.

Say I have invested six months of my life in a model of investigative journalism, the definitive first draft of the history of the relationship between Shell Oil and the Ogoni people. Tell me one sponsor or advertiser whose association with the article will not poison the content.

There is an answer, pointed out to me by Oliver Morton: Bennetton. And just how much critical news and drama can they support?

4: Patronising?

The ceiling of the Sistine Chapel is a central artefact of Western culture, and it was paid for by patrons. It's advertising - ostensibly for the Ultimate Client, but advertising nevertheless.

Can or will patronage support our high goals for cultures and democracy? Let's spare each other an argument about the congruences between pre-modernism and post-modernism, and answer in sincere, post-ironic, post-post-modernist fashion: no.

All this leaves two known economic models. Both depend on the idea that people will be prepared to pay small sums for high-quality content. One is based on subscription payments, and one on pay-as-you- go with so-called "micro-billing" for pennies at a time. And since Bill Gates thinks microbilling is the way of the future [5] ... it has a head start.

5: Superhighway robbery

From the Old World Times to the New York Times, newspaper owners are bullying their freelance contributors. The owners want the freehold in their words and pictures, for the same money they used to pay for a month or two's rent. Before owners realised there was an after- sales market, they were quite happy with a license to reproduce the work, once, on paper. After, it's "hand over or you'll never work again."

Now, this isn't necessarily related to the subscription-based model of Webonomics. After all, to the extent that contributors cave in it turns our work into a balance-sheet asset.

But, first, the commonest justification produced to freelance contributors is that "it'd be too complicated to administer rights in thousands of articles/photos": so there seems to be some connection in accountants' minds with reducing the number of transactions. And, second, my technical analysis of the way newspapers have set up their Web sites is that they are designed to implement access control by paid annual subscription; and indeed the only site publicly known to be making money, the Wall Street Journal, charges a subscription. [6]

I will return to the arguments about this after dealing with the seventh, and technologically most advanced, misconception:

6: The Web Dream

The Web Dream is, it is true, founded in an understanding of the dynamics (and indeed the topology) of the new media. Where the book and the newspaper are inherently few-to-many media of communication - the freedom of the press belongs to those who own one - the new media are, at least in their technological foundations - revolutionary because they are many-to-many media.

I have these seriously cool articles. Why should I bother with publishers? I put them up on the Web. Word gets around. They get just 1000 hits a week each. Charge the readers $0.05 each - they'll hardly notice - and that's $2600 a year per article... if I only put up one every two weeks I can gross $70k... and if one gets notorious and a million hits, that's like another $50k..."

The publishers among you will have spotted that the flaw in that argument lies in the blithe assertion that "word gets out". I've done experiments. It doesn't.

The content in the new media which gets noticed will have benefited from investment of human time and creativity - not just in the bare words and pictures, but in presentation and publicity. Somehow or other, the "publisher functions" will become more, not less, important in a crowded arena. Quite probably, at least the popular end of new media publishing will be more recognisable to Cecil B de Mille than to T S Elliot of Faber or to Mr Scott of the Manchester Guardian.

But the Web Dream does contain the seeds of the probable best outcome for authors, creators, publishers and our cultures.

What's wrong with Superhighway Robbery?

Continuing the numerological theme, here are seven things:

0: It betrays the possibilities of the new technology

Take the practical, empirical, librarian's view. Powerful World Wide Web search engines [7] - even more then the Web or the Internet itself - offer revolutionary possibilities for research and self-education. A search for "East Timor" will produce the Indonesian government's official line on an equal footing with the CIA World Factbook and human rights groups from Canada - but nothing from any of the on-line newspapers. They're all hiding behind subscription systems.

Subscriptions exist to keep readers out. The Washington Post caused a small storm in cyberspace when it took its year-old archive copies off its trial Web site, so that on-line readers had to go back to paying Dialog/Datastar $5 an article. If the newspapers implemented pay-per-read, they'd be paying the Internet search engines to visit them - and their content would be openly accessible to everyone who has a computer, a modem, and an e-cash account. [8]

But what does the choice between subscription-based and pay-as-you-go access to the new media have to do with Superhighway Robbery? There is no technological imperative: but the unimaginative, restrictive, even fearful approach embodied in subscription access control provides support for the unimaginative, restrictive, retentive approach which seeks outright ownership of all content.

1: It's short-sighted and misunderstands the media

In the long run - which may be as soon as the next ten human years or fifty "internet years" - those publishers which proper will be those which understand and embrace the new media, not those which seek to re-make them in their own image. For example, the Web, considered as "virtual news-stand" which blats 70 million or more separate pages at the user, may faze most over-40s and lead to the development of such comforters as "push media", which makes the Web look like a subscription TV channel. But the affluent 20- and 30-something customers of ten and twenty years' time will find this quaint.

You know you've grasped the point of the new media - and/or frittered too much time "surfing" - when you're watching TV news, it gets to the weather, you push the Fast Forward button, and you're genuinely puzzled why it doesn't work.

The new media are not things organised in hierarchical trees, but processes and flows organised in a "rhizomatic" tangle. (You don't have to read French philosopher and psychoanalyst Deleuze and Guattari... [9]) Success will come to most not from accumulating things, but by adding value to flows. Not, to be specific, from hoarding the Acme News Corp collection of copyrights, but by channelling works from the people who made and own them to the people who want and need them.

2: Monopolies are a Bad Thing

We have already reached a point where a significant proportion of the heritage of English-language films is controlled by a few corporations: Murdoch/Fox, Turner, Disney, Panasonic, Westinghouse... Some of us may hope that films provide challenging, innovative and critical takes on the world: but we do not rely on them to do so. Our democracy, cultures, scientific and technological development rely absolutely on the written word - whether on paper or on screens - to provide challenging, innovative and critical takes on the world.

2 March, Venice

A nice carrier-bag from the Correr [art museum], red with yellow handles and on the front the signature of Leonardo da Vinci. There is a label sticker inside saying "Used by permission of Cordis Corporation and Bill Gates", to whom I suppose Leonardo, or his signature at least, now belongs.

Alan Bennett [10]

That's just one mouthy intellectual. Economically significant cultural backlash against mega-brands is possible and unpredictable. India, for example, is now cheerfully awash with Coke and Pepsi; but the first Kentucky Fried Chicken joint in Bangalore was burned down.

It is simply unhealthy for critical texts to be in monopolistic ownership. Thomas Jefferson, for example, clearly based the concept of freedom of speech enshrined in the First Amendment to the US Constitution on a proper free market in ideas: one with a very large number of independent operators.

3: Monopolistic practices can and will be challenged, expensively

You will need no reminding that there are statutes and regulations against monopolistic practices and, to slip into Eurobabble, Abuse of a Dominant Position. Answering complaints and investigations can be very expensive.

4: It is of dubious legality, and that's expensive too

At the time of writing, we're still awaiting a result in Tasini et al -vs- New York Times et al. Jonathan Tasini, President of the US National Writers Union [11] and five colleagues are suing the New York Times, Newsday Inc, Time Inc, the database wholesaler Mead Data Central, and University Microfilms Inc for unauthorised re-sale of their work through old-fashioned online databases like Lexis-Nexis. The Atlantic Monthly was originally included in the suit and has settled. In May the Los Angeles Times started removing freelance contributors' copy from the Web and online databases, while its parent company argues in court that such distribution requires no special license or payment to authors because it's merely another way of distributing a publication.

It is highly likely that there will be a similar legal challenge in the UK.

5: It just won't wash on an international scale

Under UK law, "Copyright is a property right". [12] The US takes this approach; Ireland is the only other European Union state with similar law. In the mainstream of international law as expressed in the Berne Conventions, Authors Rights (Droits d'Auteur) are rights of the individual and, in the jargon, are "inalienable". They cannot be sold, any more than authors could legally sell their hands or their souls. (We can and do rent out our hands and our souls. It's called "work".)

In every EU state except the UK, Ireland and the Netherlands, full Authors' Rights exist in work created in the course of regular, full-time employment.

Let's not delve into the details of the laws and negotiations, and let's avoid the acronym soup which is copyright diplomacy. When operating in the new media, which notoriously know no national borders, it would seem prudent business policy to operate in accordance with the mainstream of international law. This minimises the chances of expensive retroactive payments and damages.

Why listen to me, a mere freelance journalist with a financial interest? Listen to Mr Gahrau, a legal advisor to the Bertelsmann group, speaking to the EU Legal Advisory Board on the question of permission to re-use works in multimedia products: [13]

...authors and editors must have a right of veto, which is the only means they have of ensuring that the product is well sold and the only means of recovering their costs.

Note that this is in the context of staff authors having full moral and economic rights.

6: Superhighway Robbery is terrible for journalism and creativity

As a journalist, or imagining that you're a journalist, how does the following make you feel about your work?

You hereby assign to us as beneficial owner throughout the universe the entire present and future copyright and all other right title and interest of whatsoever nature ... in and to the Work and in all other products of your services hereunder and in any previous works ... and future works written wholly or partly by you for us or for any other subsidiary holding or associated companies.... You hereby waive unconditionally irrevocably and in perpetuity the benefit of any moral rights arising under Section 71-85 (inclusive) of Part I of the Copyright Designs and Patents Act 1988 or any similar law in any country in the world.

And that's the abridged version. If I'd written that, I'd change jobs in shame -- to something socially useful, like stacking supermarket shelves. If I'd written under that contract, I'd feel that I was regarded as a shelf-stacker -- someone hired on a zero-hours contract to fill the spaces between the adverts.

We journalists are cynical for a living. We are supposed to be cynical about the pronouncements of spokescreatures and public relations entities. Such treatment from publishers makes too many journalists too cynical about journalism itself. We should be wary of the kind of self-importance that some of our US colleagues fall into -- especially when the press is held in such a low regard by the dumbed-down part of the US population -- but someone, somewhere, needs to remember that no way has not yet been invented to have democracy without careful, trusted, trustworthy journalism.

I suspect that most people, if asked, would place more trust in the work of a reporter or a photographer who retained individual rights and responsibilities than in the property of someone they perceive as a peripatetic media baron. [14]

What, then, is to be done?

It's not hard at all. The new media are not the same as publishing on paper. The best analogy is that they are a form of syndication -- to individual readers and viewers.

The same technology which makes it possible now to deliver individual Daily Me electronic newspapers to 30 million homes and offices (and, soon, to deliver a tailor-made TV channel to 15 Railway Cuttings, East Acton) equally makes it possible to collect pay-as-you-go revenue. Publishers are entitled to a fair share for their publishing work. We who actually make the stuff are entitled to a fair share too.

Publishers don't even have to hire the computer programmers or mail the cheques. We who actually make the stuff are quite happy to have collecting societies which we control do all that.

There are questions still to be answered. One of the more philosophical is this: how "fine-grained" should authors' rights be. Does the set designer for the second series of the Avengers get a milli-penny when someone in Toulouse downloads Chapeau Melon et Bottes de Cuir? Not until the transaction cost is measured in micro-pennies. One of the more difficult is the handling of permissions. But, once publishers agree that we can negotiate our fair share, we can negotiate the boundaries of automatic licensing too. We have the technology, we have the concepts: we just need a spirit of co-operation.

As columnist Claire Rayner said in response to a document from the Daily Telegraph, much like the one above:

I want to have a tiny little share in it - nothing excessive, just my share.

References:

[1] I can't find the Statute of Anne in electronic form. You'll have to read it on paper: 8 Anne, c. 19.

[1a] See Droit d'auteur et Révolution by Paris lawyer Daniel Bécourt, at http://www.argia.fr/lij/ArticleMai96-2.html.

[2] Isaiah 45:16.

[3] "Wine Without Bottles", Wired 2.03: available in many places on the Web, including HotWired.

[4] "Intellectual Value" in Wired 3.07: available at http://wwww.wired.com/wired/3.07/features/dyson.html.

[5] On 7 December 1995 Mr. Gates said that for Internet commerce to succeed, it must be possible to handle transactions as small as one US penny.

[6] See the Wall Street Journal subscription form at http://interactive5.wsj.com/std_regchoice.html.

[7] My personal favourite search engine, because it offers most precision, is the AltaVista Advanced Search at (deep breath:) http://altavista.digital.com/ cgi-bin/query?pg=aq&what=web.

[8] This idea is developed by the Librarian of Babel at http://www.ariadne.ac.uk/issue9/babel/ in the online journal Ariadne.

[9] For a brief and puzzling start, try "Rhizome" in Gilles Deleuze & Félix Guattari trs. John Johnston (1983) On the Line, New York New York: Semiotext(e).

[10] Alan Bennet (1997), "What I did in 1996" London Review of Books 2 January 1997

[11] See the National Writers Union website at http://www.nwu.org/nwu/.

[12] Copyright, Designs and Patents Act 1988: Eliz. II, c. 48 Part I Section 1 para 1.

[13] Commission européenne Commission Consultative Juridique (LAB) La société de l'information: droit d'auteur et multimédia: Luxembourg, le 26 avril 1995. Official minute reads:

...les auteurs et éditeurs doivent avoir un droit de veto, qui est le seul moyen pour eux de veiller à ce que le produit soit bien vendu et le seul moyen de récupérer les coûts de production.

[14] This leads to the argument about the digital manipulation of photographs. See http://www.gn.apc.org/media/manip.html.

home

A talk given at the City University (London) conference NetMedia97 on 3 July 1997.

You can see the "slides" for the talk here.

Copyright © 1997 Mike Holderness; moral rights asserted.

This is document http://www.poptel.org.uk/nuj/mike/city-c.htm

Mike Holderness is a freelance journalist. He is a member of the Advisory Committee to UKOLN, the office for library networking; of the Freelance Industrial Council of the National Union of Journalists; and of the Freelance Experts Group of the European Federation of Journalists.