Writer's Resources

Electronic Publishing: Fiction and Fact
Prepared by the ASJA Contracts Committee

These days, contracts for freelance articles can be super-dense, high-legalese documents longer than the articles they commission. Rights clauses--in particular, those pertaining to electronic rights--cause the most consternation, especially when the publisher wants those rights for free. Often they cause the most confusion, too.

Editors may find themselves called upon to explain and justify to writers a contract that demands for the publisher "the nonexclusive right to exercise, by itself or through third parties, the rights granted herein in any form in which the Work may be published, reproduced, distributed, performed, displayed or transmitted (including, but not limited to, electronic and optical versions and in any other media now existing or hereafter developed) in whole or in part, whether or not combined with works of others, in perpetuity throughout the universe...."

The discussions frequently include certain basic information about electronic publishing in the world of periodicals. The problem is, much of that information is wrong.

Here are the Most Repeated Cyberfables, each accompanied by what you should know to correct them.

"Databases like Lexis-Nexis are just another way of distributing our publication. You wouldn't expect more money if we signed up 1000 more newsstands, would you?"

A database is not simply another means of distributing a publication, because a database doesn't distribute publications at all; it distributes individual articles. Online services usually collect a per-article fee from database users; publishers collect a piece of the pie in regular royalty payments. It's as if a reader could go to a newsstand, slice an article out of a magazine and pay for the clipping alone. It is, in effect, an electronic delivery system for a reprint service.

"We don't `cherry-pick.' We use the article only as part of the whole issue in which it appears. It's simple archiving."

In a text-only database, there are no graphics and no ads, and frequently the database is missing some editorial matter, such as letters to the editor, short items, and articles by authors who have insisted that their work not be included. Hardly "the whole issue."

"This is just like microfilm."

Microfilm, which replaced bound volumes,was a new form of archiving, containing each issue in its entirety, page after page, just as it appears on paper. But an electronic database, online or CD-ROM, is an archive of articles, not of issues. The publisher's copyright covers the collective work--the articles, graphics, and ads as strung together--but not the individual constituent parts. (Just as a writer's copyright in an article is for the stringing together of words; the writer doesn't own the individual words.) In the case of online databases, the reader generally pays the online service per hit, the database producer takes a cut, and the publisher gets a royalty. The only party in the chain whodoesn't keep making money is the author--unless the author-publisher agreement calls for sharing the revenue.

"But no publisher is making a dime at this."

Wrong. With databases, publishers profit from the first sale on, because they have no startup costs; they sign a deal and collect royalties. Some heavily researched publications, like theNew York Times, already make millions a year from electronic products. Others make peanuts. But whatever they make from these databases is pure profit. On the other hand, publishers' own online efforts, including sites on the World Wide Web, may have high startup costs and bring little initial income (although major advertisers are starting to sign up for some prominent magazines' sites). But while bottom line is what it's all about, in a print venture no publisher expects profits from Day One, and no publisher expects freebies from freelancers. In electronic publishing, even before they start turning a profit, publishers pay everyone from their computer programmers to the electric company. Why should they get content for free?

"We don't charge download fees on our Web site. If we start charging, then we'll pay authors."

Download fees are just one of several ways online publishers profit. They sell ads, products and services, and mailing lists. They gain increased paper subscriptions and general promotion. In deals with commercial services, like America Online, they may earn finders' fees for bringing new subscribers to the service. Some of the most profitable print publications are controlled-circulation giveaways with heavy advertising; should writers provide them with free articles because they don't charge for subscriptions?

"We don't know which articles are accessed. It would be too expensive to keep track."

Untrue. Per-article tracking is not only doable but common.

"It would be too expensive to write a lot of small checks." It might have been, but writers and agents have joined in the Authors Registry, which will keep accounts and conglomerate those small checks for authors. "The bookkeeping is difficult, so we'll keep all the money" was always undesirable; now it's also indefensible. Such major publications asCooking Light, Food & Wine, Harper's, The Nation, Publishers Weekly,Travel & Leisure,andYankeehave already begun arrangements with the Registry to get payments to authors.
"The exposure will be good for you. It'll get your name around. In the case of books, it's free publicity."

By that reasoning, authors shouldn't be paid for print publication either, and should give away first serial rights to books. Even it if seems that an online appearance can help a new book with extra exposure, how will it help in a couple of years, when the book is out of print? The chapter excerpted in a magazine or newspaper may continue to earn royalties for that publication...but not for the author.

"We can't delete one article."

Standard agreements with database producers allow for removal of any material as requested by the publisher, before compilation or after. If a publisher won't pay, a piece can be left out.

"If you make us delete this article, you'll be interfering with the flow of information, research, scholarship, the future of the world...."

In other words, when it comes to aiding research, publishers should be allowed to profit but authors should do it as a public service?

"We ask for only nonexclusive e-rights; the author can relicense the work too."

Should an author have to compete with Condé Nast or Hearst in marketing? And what happens when a potential purchaser asks for territory or category exclusivity? The author has to say no, because the original publisher may be selling to the competition. But even more basic is this question: Should a publisher be able to make continuing use of a free-lancer's property and keep all the proceeds?

"The business is new. Let it shake down a few years, then renegotiate."

Ever try to push the toothpaste back into the tube? Industry standards of the future are being established now. Publishers and freelancers should build them together. Fairly.

"All the other writers are signing."

Oldest line in the book of Publisher-Speak, and rarely true.

"Our lawyer won't allow any changes."

Best response: "Neither will mine."