Will Publishers Be Paying Writers More for Web Rights?

By: Steve Outing The Web has quickly evolved into a mass medium of its own right. Few would dispute that publishing on the Web is as much of an independent medium as are newspapers, magazines or television. True, many traditional media treat their Web sites as extensions of their core businesses, but you can't deny that the Web is a publishing medium on its own.

Hence, print publishers need to stop treating the Web as an extension of their core products and realize that it is a separate medium, says the National Writers Union (NWU). This week, NWU issued a controversial set of guidelines that urges writers to demand from publishers a separate fee for work that is published on the Web, "commensurate" with the fee that a publisher pays for print rights.

Previously, NWU, a U.S. trade union of about 5,000 freelance writers, recommended to its members that they seek at least 15% added payment for each digital re-use of a work for a period of one year. (That would mean that a writer should get 15% extra for granting a publisher the right to include the work in Nexis-Lexis; another 15% if it would go on a CD-ROM project; and another 15% if the work would appear on the publisher's Web site.)

But according to Naomi Zauderer, national organizer for NWU's journalism division, the union came to realize that Web sites needed to be treated differently because of the evolution of the Web into a vibrant medium of its own. Web sites are different from CD-ROMs or archival databases, the NWU argument goes, because they are more like separate publications. Content from a newspaper that goes into an archive service like Lexis-Nexis is merely an archive, but Web sites typically contain not only print content but also some original content; most often, repurposed print content includes some of what appeared in print, not everything. Hence, Zauderer argues, print publications' Web sites are separate publications, not simply archives.

'First WWW Rights'

What NWU wants to see, ideally, is writers negotiate to sell First North American serial (print) rights, for instance, separately from First World Wide Web rights. Those Web rights, Zuaderer says, should be worth as much as or (eventually) more than the print rights. And just as a North American writer might also grant First United Kingdom rights to a British publisher and collect those fees for a work, the Web should be treated similarly as a separate market for which a writer can collect income.

A fee "commensurate" with a print fee does not necessarily mean 100% of the print fee, Zauderer says. Indeed, most print publishers these days will laugh in a writer's face if asked to pay double for the right to republish a work on a Web site. The economics of Web publishing typically do not yet support that kind of payment for a second use of an original work. So for the time being, it's only reasonable for writers to seek more modest payments from a print publisher who wants to use their work on a Web site. (This is my view, not the NWU's.)

What NWU is advocating is for writers to deny a publisher Web rights if it is unwilling to pay a reasonable extra fee for Web rights. Not everyone agrees with that sentiment, however. Some writers like the idea of their work going on the Web, because of the additional exposure their work gets -- which can be used to entice other clients to hire the writer. If other Web publishers are to use a writer, for instance, it would be a handicap if the writer's work was not viewable online because the author refused to grant Web rights to his various publishers.

The flip side to that argument, says Zauderer, is that when a work is published on the Web, it impedes a writer's ability to market it elsewhere because of a Web site's theoretical worldwide reach. If a work appears on the Web uncompensated (because the writer gave a print publisher Web rights without demanding additional payment), he's possibly losing out on potential income from Web publishers who might want to buy the work. Any writer who has followed the growth of the Internet now realizes that the Web represents a potentially huge new market for their work.

Show me the money

Many print publishers who operate Web sites are slow to accept the idea of paying significant amounts of money for Web rights. Writers for print publishers who have successfully negotiated extra payment for Web rights typically have received modest fees on top of print rates. That's largely due to the financial state of many Web sites -- that is, few of them are making money, and all are trying to keep their costs low.

Zauderer suggests that too many publishers are trying to build successful Web enterprises on the backs of writers, paying them less for Web rights than what the work is worth. Her argument, which is a compelling one, is that publishers are paying market rates to others involved in creating their Web services -- Webmasters, programmers, designers -- but writers are often taken advantage of, because they too often will put up with it.

Realistically, it will take a while for the Web publishing environment to mature to the point where the Web as a medium commands the kind of writing fees for republished works that NWU recommends. An increasing number of online-only publishers do pay well -- sometimes in excess of typical print rates -- for original writing. But for republished work, writers probably will have to wait a while before publishers take seriously demands for substantial fees for Web rights on work originally written for print.

The alternative for a writer who believes a work is marketable to other Web sites, of course, is to deny Web rights to the original print publisher and sell the work to another site that is willing to pay more.

Even the NWU acknowledges that its policy may be a bit ahead of its time. NWU president Jonathan Tasini wrote in a press release announcing the new Web rights recommendations, "Even if there is not a market today, writers need to know that the Web is in the process of becoming a mass market medium, and the Web value of many stories may be much greater than the print value -- if not today, then very possibly a year or two from now."

Tasini update

It's worth noting as a sidebar that Tasini is the lead plaintiff in the Tasini v. New York Times lawsuit, which awaits appeal. The outcome of the initial case was decided in favor of publishers; the decision states that publishers do have the right to republish print freelance works, without extra compensation to writers, on CD-ROM or on database archive services, because those are deemed as extensions of the original publication.

The court decision as it stands pre-appeal applies only in the New York District, but more importantly it does not cover Web sites. Hence, there is no case law indicating one way or another whether a publisher without a contract with a writer (specifying specific digital republishing rights) has the right to re-use a work on its Web site, because Web sites have not been defined as extensions of a print product.

Online discussion of NWU recommendations

Participants of the Online-Writing Internet list are discussing the implications of the NWU's revised recommendations on Web rights. You might want to read the debate or participate in that discussion.

Contact: Naomi Zauderer, nwu@nwu.org

Online sports poll debuts

In a recent column, I wrote about the first ongoing top teams poll of online sports journalists, which was created by SportsEditor.com. The first poll, which names the top 25 U.S. college football teams, took place last weekend and the results have been posted. (The online sports editors and writers who took part in the SportsEditor.com poll name as the top three teams Ohio State, Florida State and Nebraska.)

Poll results, which come out weekly on Sundays, are being published on numerous online sports Web sites.

Steve

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This column is written by Steve Outing exclusively for Editor & Publisher Interactive three days a week. News, tips, and other communications may be sent to Mr. Outing at:steve@planetarynews.com

The views expressed in the above column do not necessarily represent the views of the Editor & Publisher company