New Star freelance contracts raising eyebrows

The Toronto Star has been issuing new agreements to its freelancers that contain broader language than previous ones. According to some freelancers we heard from, there was less pressure to sign and return the contracts when they were first distributed, but after questions were raised about its wording, a hard deadline was set.

There are a few clauses in the contracts that raise questions.

The first is the use of the term “affiliates” in this section of the agreement: “In consideration of the fee paid by the Publisher for a particular Work, the Freelancer hereby grants to the Publisher and to each of its affiliates, an irrevocable, perpetual, worldwide, royalty-free non-exclusive license to…” Who exactly those affiliates are is not defined elsewhere in the agreement.

The second is the use of the term “marketing purposes,” in this section:

(ii) reproduce, publish, republish, compile, prepare derivative works from the Work (including use of the Work for marketing purposes by the Publisher and its affiliates) and, so long as such rights are exercised either (A) in association with the name of the Freelancer and the Publisher (or its affiliates, as applicable) or (B) as part of a database or archive of any of the publications or properties in (i) above or in products derived from any of them, sub- license or authorize others to exercise the above rights in this paragraph 1,

This vague use of “marketing purposes” could, for instance, lead to a publisher syndicating writers’ work with large international web entities such as Yahoo and MSN, but not giving the writers any extra compensation. The publisher could claim the clause in those writers’ agreements gave them the right to do this, since posting the freelancers’ work on worldwide sites like Yahoo drove traffic back to their own site, thereby promoting it.

Lastly, some of the contracts sent to freelancers had a final clause that allows the Star to sell work to third parties:

7. [In further consideration of the fee paid by the Publisher, the Freelancer also grants to the Publisher and to each of its affiliates, the right to freely assign and sub-license to any third party the rights granted in paragraph 1 above without the restrictions contained in subsection (ii)(A) and (B), provided that such use continues to be in association with the name of the Freelancer.]

There is no mention of additional compensation for writers if the Star sells their work. Granting a publisher this license effectively means a writer will be competing with the publisher in trying to re-sell their own work. We have heard from writers that some of the new agreements have this clause and some don’t.

We spoke with one contributor who, having signed another agreement about a year ago, said there was more intense pressure to sign the new contract, with Star editors asking that the contracts be returned as soon as possible. The freelancer, who was “alarmed” by the new agreement, has heard from other freelancers and freelance advocates who say it’s the last step to taking away all of their reproduction rights, and that the paper is treating them like staff writers, when it comes to how their work is licensed. The editors pushing to get the new agreement signed are using strong language, effectively saying “sign or your cheques simply won’t get signed,” the freelancer told us.

Is the Star today following in the steps of its storied publisher, Joseph Atkinson? From their own description of the Atkinson Principles, the story goes: “The welfare of workers was a primary concern of Joseph Atkinson, though initial attempts to organize reporters and editors at his own newspaper were frustrated for several years. (He reportedly feared any agreement that did not included the Globe and Telegram would put the Star at a competitive disadvantage, and he insisted on joint negotiations).” So while the publisher supported the rights of workers to organize in theory, he wanted to ensure that the Star was getting as much out of its writers and editors as its competitors. Is this what’s happening today? Is the vaguely worded contract the paper’s attempt to keep up? Or does it have something to do with the recent Robertson settlements, or maybe the Star‘s mobile initiatives?

Story Board contacted executive editor Murdoch Davis to ask for clarification regarding the agreement. He told us that due to factors that could make it difficult for writers to return their agreements promptly (delays caused by the Canada Post disruption as well as the upcoming long weekend) the deadline has been extended to mid-July. “That is, we will expect work done for us after that date to be done under a new copyright agreement,” Davis wrote, adding, “If contributors have concerns, they should bring them up with us.”

After we submitted further questions about the wording of the agreement, Davis responded: “The agreements have been drafted by Star legal counsel, and I’m not going to parse the words. I’m not a lawyer. As lawyers would say, the words mean what they mean. The terms are broad because we are trying to ensure that potential future business initiatives are not unduly encumbered, and to avoid issues such as the recently-settled lawsuit.”

In regards to our question about clause 7, quoted above, that lets the Star sub-license work to “any third party,” Davis wrote: “The version to which you refer as having a “syndication clause” (your term, not mine) is for Star employees.” Whether its inclusion was accidental or not, we, however, have heard from Star freelancers who say their new agreements contain that clause.

We’re seeking input from Star freelancers who are concerned about the new terms. CMG is already acting on behalf of its current writers in regards to the agreement. If you want your voice to be represented in future conversations, please send an email to freelance@cmg.ca. Correspondence with individuals at the Guild will be kept entirely confidential.