Copyright Treatment of Freelance Work in the Digital Era
D'Agostino, Giuseppina, Santa Clara Computer & High Technology Law Journal
Without formal petition
Thus stands my condition:
I am closely blocked up in a garret,
Where I scribble and smoke,
And sadly invoke
The powerful assistance of claret ...
--Thomas Brown, The Poet's Condition (1)
More than three centuries ago, Thomas Brown, a graduate of Oxford, (2) wrote about the debt-ridden fate of London hack writers. Patron-less, they wrote for money. As Philip Pinkus details in his elaborate study of the colorful and skillful Grub Street (3) writers, "there were arid moments when they could not squeeze a shilling from their publisher or an ounce of credit from the tavern-keeper." (4) Whilst their works have been at times cast as mere "doggerel" as they were not the Swifts or Popes of the era, the seventeenth century hacks revealingly dispel the dire condition of the common writer. Writing in destitute times, these writers deliberately chose subjects, which appealed to their readers, from politics to thorny themes like marriage. And although hacks like Thomas Brown led austere lives, they still dared to dream and aspired for something better. Today, Thomas Brown is the twenty-first century freelance writer. In part because they are not the Rushdies or Kings of our times, freelancers illustrate the current plight of the aspiring writer as they are subject to similarly unfavorable economic, social, and legal conditions.
This Article examines the current legal state of freelancers as they attempt to earn a living through their writing. To do so, I will begin to explore the angst of freelancers throughout the history of the western world in relation to copyright law. I argue that copyright law, which was purported to address the needs of the author through protection of works and thus create incentives to produce and bolster societal well-being, has insufficiently met these objectives. In practice, freelancers have typically become at the behest of publishers--the real right holders--receiving a disproportionate benefit.
The current proliferation of digital technologies expands the publisher's exploitation powers. Increasingly, publishers exploit freelancers' works not only in print form but also digitally, often by making them available through their own Web sites or by selling them to third party databases. Freelancers argue that they receive no notice, give no consent, and obtain no payment for the exploitation of their works through these new digital uses. In justification, publishing conglomerates seize on ambiguous contracts (5) previously made with their freelancers to read in allowable new uses. The central issue is whether the authors' contracts, by which copyright is transferred for publishers to print their works, contemplate electronic publication rights. For staff writers, it is a moot point, (6) but for freelancers who base their livelihoods on each new contract, the issue is a vital one. This is not solely an issue of contract law. While contract doctrines may be material, the question of freelancers' transfer rights necessarily implicates copyright law. Copyright law therefore requires a management system that is attuned to such intangible goods. This issue similarly concerns copyright law and its future, since the development of new technologies will continue to open up new markets of exploitation and with this, renewed challenges to copyright law. (7)
Such phenomena cannot be viewed as a temporary reflection of market forces, and that with time new industry customs will develop to resolve the current uncertainty in copyright conveyancing of new uses. (8) Should such a laissez-faire approach be adopted, publishers who are in a better position of power will continue to extol a disproportionate benefit from their freelancers. More and more, publishing is not so much a "public trust" but part of a multi-million dollar industry wherein multimedia conglomerates vie for a greater share of the online market. …