Troubles face Contentville

It is not just recording artists who are seeing their incomes hit by the internet. Authors are being hit too, says lawyer MIKE CRONIN*.

At the same time that the traditional record industry is trying to shut down Napster and other internet-based MP3 services, a similar dispute is being played out between publishers and writers.

Some of the latter received a rude shock when they found their work for sale on an internet publishing site they knew nothing about - Contentville.com - which had also neglected to pay them for reproducing this material.

Contentville.com allows electronic reprints of articles and novels to be downloaded to computers after users pay a fee with a credit card.

It features articles by reporters from Village Voice and works from prominent writers like Margaret Atwood. It also contains works by New Zealand authors, including Keri Hulme.

The site isn't of the "here today, gone tomorrow" variety. It is run by a partnership which includes major corporations CBS, Microsoft, NBC and others. When some of the problems were brought to the owners' notice, immediate action was taken to investigate the issue and to ensure that works that hadn't been authorised were taken off the site.

Contentville.com is clearly not the villain in the piece. One of the real issues involved is setting up systems that meet the requirements of the creators of content (which are principally income and quality concerns) and aligning them with the internet and other new media.

As the target audience for media companies gets bigger and bigger, the need for content intensifies. But these aren't new issues for authors. Charles Dickens complained bitterly when he thought his novels were being pirated by the more efficient US publishing companies. The use of articles and extracts from novels in anthologies is an accepted practice. Authors can find that they have given away the rights to do this to their publishers, but usually in return for a share of any income that is produced.

The internet is the ideal way to collect articles and other works and make them available to a huge group of readers. If you throw in some credit card technology, then you have quite a nice business, which is where Contentville.com comes in. But an electronic database of articles will breach the original author's copyright, unless permission has been given.

A year or two back a reporter for the New York Times, Jonathan Tasini, took an action against his newspaper to prevent electronic publication of his articles. The court found that if an author's work is written for a newspaper it cannot be used in another way - including electronically or on a database - without the author's permission.

The New Zealand position is similar. Under our Copyright Act 1994, it is possible to carve out different levels of copyright in the one work. An author can do separate deals for copyright in a whole series of different countries; or can allow it to be published only in a newspaper, but not on the internet; or only broadcast on free-to-air television, not pay TV.

All of these rights can be freely traded so that a reporter can allow a newspaper to publish an article but not put it on a website, or more commonly, the author can allow the newspaper to deal with his or her work in whatever way they want.

As a general point, it is worth remembering that, if a reporter is employed by the newspaper and nothing else is said, the newspaper is going to own copyright in articles written by the reporter. This is subject to obligations to recognise the reporter's moral rights - including recognition as the author and not having their work mistreated.

Getting back to our viable e-publishing business, it is clearly not economic to try to get permission from a wide variety of authors scattered around the globe. For many years, the music industry has used collective organisations that represent singers and songwriters and collect royalties on their behalf. This is good for the singers and songwriters but it also makes it easier for radio stations and other users of music content to deal with a limited number of organisations. There are similar organisations representing authors, but controversies like the one started by Contentville.com highlight their importance and are likely to lead to greater use of them.

Businesses buying up content need to exercise caution. Articles acquired from independent clearing houses still need to be checked to make sure that the clearing house has got the right to sell the article. It might only have the rights to sell it to hard print organisations and not allow it to be used over the internet.

Authors need to think about their own requirements as well. How much is intended to be given away, and what controls are there over use of the work?

There are definite opportunities out there. New kinds of business models are rapidly being developed. Industries which rely on intellectual property assets in the real world will eventually be overtaken by reality if they do nothing more than defend traditional intellectual property rights against forces like the internet. The trick is to develop collecting societies and pricing models which are high enough to give content owners a decent return but low enough so that users are disinclined to go through the trouble of hacking and piracy.

A good illustration of all these different forces can be found with the cross-stitchers and knitters. Using a Napster-like model, ageing craftworkers across the US are saving money by setting up internet-based societies to trade cross-stitching and knitting patterns. Sales of legitimate patterns have fallen dramatically, and owners of copyright in the patterns are suddenly out of pocket. Copyright owners are looking to resurrect their income base and are trying to shut the groups down. As a result, the groups have become elusive, demanding electronic passwords and requiring pledges of loyalty before allowing anybody access. There have already been reported incidences of hacking and infiltration by representatives of the copyright owners.

The clash is between those who think that all information should be freely shared and those who want to protect their intellectual assets. There has to be sufficient incentive for creators to continue creating and developing new intellectual assets. One thing is for sure, this type of swapping and sharing of information isn't going to stop at newspaper articles, music or knitting patterns.

* Mike Cronin is an IT partner at Russell McVeagh.

Links


Contentville.com