Nathan Fan is a JD candidate at Osgoode Hall Law School.
In this digital era where authors and creators are scrambling to regain a hold on the copyright in their works, Professor Giuseppina D’Agostino’s new book, Copyright, Contracts, Creators: New Media, New Rules, is a timely and compelling contribution to the world of copyright literature. Although creators in the music or film industries and the like have often taken the limelight when it comes to copyright discourse, D’Agostino’s book focuses on the oft-forgotten but equally important freelance writer. Her book carefully documents the history of copyright laws in relation to freelance writers and assesses the efficiency of those laws to address copyright contracting in the digital era. Ultimately, she argues that the copyright laws in the UK and other countries such as Canada and the US do not sufficiently address copyright contract issues, a central concern to freelancers, and are inadequate to resolve the ambiguity of new uses provided by advances in technology.
D’Agostino begins her book by showcasing the difficulties that freelancers face due to the current imbalance of power within the publishing industry. As a rights-buying business, the newspaper and magazine industries have attempted to buy up all future uses of freelance works, leaving freelancers with decreasing control over their copyrights. In the digital era, this has been exacerbated by “digital recycling”, where publishers exploit new avenues to profit from an author’s work (e.g. reproducing their work in databases, selling the works to third-party databases, or making the works available online) but seldom do publishers acquire the freelancers’ express permission or provide adequate remuneration for such uses. D’Agostino notes that current contractual practices allow the freelancers to retain copyright in their work, but such rights are then circumvented as publishers reserve worldwide, unlimited rights to publish the works in any media now known or unknown, without giving any adequate or additional remuneration to the freelancers.
The book provides a detailed but concise history of the development of copyright law and illuminates how copyright has traditionally been a publisher’s right, not an author’s right, treating the author as “both a pawn for the booksellers and for the draftsmen, and less the object of social policy”. Later copyright legislation in the UK revealed that there were some attempts at restricting the publisher’s unlimited rights, but that many of these restraints were subsumed by private bargaining and litigation. However, as the vast majority of cases that centered on the interpretation of copyright transfers between authors and publishers were usually decided in favour of the authors, D’Agostino suggests that these cases should continue to be followed today as they have not been overruled.
In contrast, in the modern age, international and regional copyright legislation do very little to advance the interests of authors. D’Agostino documents the failure of international copyright legislation to live up to their promise of protecting authors, such as the Berne Convention to which she describes as remaining no more than a symbol of its original premise as the “author’s statute”. Similarly, her assessment of the contract laws of various common law and civil law jurisdictions suggests that while certain contract principles such as good faith and contra proferentem may work in favour of the author, absent a firm codification of these principles, the outcomes for authors in common law jurisdictions is unclear. Further, other principles such as foreseeability tend to tip contract laws to the advantage of the publishers, leaving freelancers without an appropriate legislative copyright contract mechanism.
D’Agostino also provides an assessment of judicial treatment of freelancers in Europe and North America, with specific attention to the seminal US case Tasini v New York Times Co and the Canadian case Robertson v Thomson Corp. These chapters compare the approaches taken by the different jurisdictions and also examine the approach taken to the uses of freelance work in other copyright sectors such as the film industry.
The final chapters of her book are devoted to her solution to the problem of publishers exploiting the ambiguous nature of the copyright contracts. The solution suggested is a “freelancer-publisher equilibrated theory”, which would create a theoretical framework that equalizes the long-neglected interests and gains of freelancers with those of publishers. D’Agostino suggests that this can be accomplished through a combination of legislative and judicial intervention, collective action from freelancers, and increased freelance awareness and education.
D’Agostino’s book provides a very comprehensive and insightful account of the freelancer’s condition in the digital era and sheds light on the necessary areas of copyright contract law that need to be rebalanced in order to remedy the “copyright tragedy” between freelancers and publishers. The Supreme Court of Canada’s Justice Rothstein has commented that Copyright, Contracts, Creators: New Media, New Rules “…is a must-read for the intellectual property legal community and anyone interested in the promotion of creative works”, and I can recommend no less.