A perspective on the freelance journalism case from CLUE: Canada's Association for Open Source.

On October 12, 2006, the Supreme Court of Canada released a decision in a case first launched in 1996 by Heather Robertson, a freelance journalist, and Thompson Corporation, the then-owner of the Globe and Mail. (Citation: Robertson v. Thomson Corp., 2006 SCC 43)

From the perspective of the journalists this case was about a simple idea: they believe that when they negotiate with a publisher for one type of use of their work, that there should be additional permission and/or payment if additional uses are made. In this case they had negotiated for freelance articles to be included in printed newspapers, but these same articles were added to online databases of articles and CD-ROMs of articles.

While we agree with the journalists with their intent, there is far more to this decision than what journalists intended. This case brings up issues with technology neutrality and media concentration. Each of these issues have implications for the Free/Libre and Open Source Software (FLOSS) community that CLUE represents.

Technology Neutrality

If you read the decision you will notice there is division within the judges on some key technology questions, with 5 judges offering a technologically dependant decision and the 4 dissenting judges offering a technologically neutral decision.

They discuss the idea of "media neutrality" where the copyright act is intended to treat the same content the same no matter what media it is stored or communicated on.

More critically the Judges disagreed on whether the courts should focus only on the "inputs" to software when analysing digital copyright, or the "outputs". This case looked at three different forms of electronic access to articles: a daily online version (such as is seen on many publishers websites), a searchable database (such as Info Globe Online and CPI.Q), and CD-ROMs.

A technologically neutral position would be to look at the form that these articles are stored, such as whether they were separated into individual articles. This is a focus on the inputs to software. In this case I believe all three make use of individual articles, which are then displayed in different ways depending on software choices.

The majority of the judges looked not at what was contained in the digital files, but how they were displayed. The majority said that the online version and the CD-ROMs had contextual information in the way they were displayed, but the database version did not, and thus only the database would infringe the journalist's copyright. This means that the evaluation of whether a file is infringing is dependant on the specific software choices made by the user of the file.

One paragraph from the decision demonstrates this software-dependant decision making:

52 The user of the CD-ROM is presented with a collection of daily newspapers which can be viewed separately. When viewing an article on CD-ROM after searching for a particular edition, the other articles from that day's edition appear in the frame on the right hand side of the screen. To pass muster, a reproduction does not need to be a replica or a photographic copy. But it does need to remain faithful to the essence of the original work. And, in our view, the CD-ROM does so by offering users, essentially, a compendium of daily newspaper editions.

CLUE's policy focus can be simplified to say we advocate to protect the the right of the owners of computers to make their own software choices, and further that we seek to remove any legal or other barriers that would favour non-FLOSS software over FLOSS. This decision leaves us with a situation where the copyright status of a digital file is dependant on specific display features of software, which reduces the available software choices, and makes user modifiable software like FLOSS more risky than software that disallowed the user from changing display characteristics.

Media Concentration

When an author is working for a company, the company automatically receives copyright over their work, and thus this question doesn't apply to them. It is only freelance authors that might possibly have any additional input into how their work is used.

Even where a publisher needs permission, the freelance journalist is in a very weak negotiation position. We currently don't have a large competitive marketplace that these journalists can go to, and most of the larger publishers impose standard contracts which strongly favour the publishers. Much of what the freelancers wanted from this case was rendered moot long before the case was decided.

Barry Sookman from the law firm McCarthy Tetrault represented the Canadian Newspaper Association as an intervener in the case. He indicated that the majority of the industry have changed their standard contracts to include digital databases, and these additional uses are being included without any additional payment to the journalist.

Many software authors would like to operate as freelance authors as well. In the software marketplace there are very few places that market non-FLOSS software that allow the author to retain copyright at all, so the author has no rights at all beyond the one-time payment they receive as part of their employment.

The FLOSS market better enables authors to work as freelancers, retain copyright, and license their works in a variety of ways to suit a variety of different business models. While they don't receive royalty payments for their work when using a FLOSS license, this isn't a change over the situation if they worked for software vendors which also do not offer their developers royalty payments.

The barrier to marketplace entry for FLOSS authors is small, with an author only needing to find customers that need a small amount of value-add on existing FLOSS software. The barrier to entry for non-FLOSS is quite large, as the freelance author needs to complete an entire marketable software project in order to enter the marketplace, are likely to remain relatively unknown in the marketplace, and only a few receive enough royalties to fully pay for the large up-front development costs.

FLOSS helps break down monopolies, as there are no exclusive rights that tie customers into hiring specific companies to offer full support on the software, including enhancements. The more diverse and competitive the marketplace, the better the negotiation position for authors to be able to go to different companies and/or customers for their work.

This same highly competitive market dynamic can help freelance authors outside of software as well, given the benefits extend to all peer production and peer distribution, not just for software.

Rather than trying to impose royalty based business models onto larger markets, as is being proposed by Access Copyright for educational use of the Internet, authors should be lobbying to ensure a full spectrum of business models are protected. This should include those business models which better allow authors to become freelance authors.