The following is distributed with the permission of the writer. This happened to be published on the first anniversary of Nicholson Baker's influential New York Times op-ed essay, "Infohighwaymen," which launched our Operation Magazine Index campaign, and in turn led to the formation of Publication Rights Clearinghouse. Matt Westendorf Office Administrator West Coast Office National Writers Union *************** FROM THE SAN FRANCISCO BAY GUARDIAN October 18, 1995 CYBERSHOCK Righting Copywrongs By Craig McLaughlin The first time Irvin Muchnick, assistant director of the National Writers Union, sent me materials about Operation Magazine Index, I agreed it was an important story that I should tackle in this column. But that was several months ago, and I kept finding other things to write about. Now, however, I have a vested interest. Muchnick's method of getting writers interested in OMI can be pretty effective. He does an electronic search of on- line magazine indexes and shows the writers that articles they wrote for print are being resold in electronic form -- and in most cases the writer is not getting any of the proceeds. It's akin to actors not being paid for reruns. Most freelance writers, when they sell an article, sell only the first North American serial rights. After the article runs, the author regains rights to it unless a contract explicitly states that the publisher retains those rights. "Freelance writers make their money selling seconds," Muchnick tells me. "Otherwise they can't pay the rent." Magazine and newspaper indexes aren't new, but now many of those indexes contain full-text articles. I can go to my local library, for instance, and pull articles off a service called InfoTrac. Information companies such as InfoTrac make money selling access to those articles -- in effect, electronically republishing them -- but instead of paying writers for them, in most cases they are paying magazine publishers. "The basic issue is that there is a piece of pie out there and more of it has to go into the pockets of the writers," Muchnick says. The packet Muchnick sent me last spring didn't overwhelm me, since most of my writing has been for alternative weeklies, and alternative weeklies aren't widely available on-line. (The most interesting thing to me was that his search turned up articles by the other Craig McLaughlin, a Maine-based naturalist and writer.) The only piece of mine mentioned was a 1987 article in Sierra, and that was only a citation. But when I let Muchnick know I was ready to write about his project, he ran the search again. On a service called UnCover he turned up a piece I did this May for Metropolis, a New York-based architecture and design magazine. For $11.50 UnCover will fax customers a copy of that article; $3 of that cost is a copyright fee. But if anybody has downloaded that story, the $3 hasn't gotten to me. If I'm going to be published electronically, though, UnCover is the place to be, because it is party to OMI's first major success. In August NWU approved the creation of the Publication Rights Clearinghouse, which will help member writers establish their rights to their articles. If the UnCover system sells an article owned by a PRC member, it will pay the copyright fee to PRC, which will take out a small administrative charge and pay the rest to the writer. I think, however, that I may have signed away my rights to the Metropolis article. Somewhere in my to-be-filed there's a contract I only vaguely remember, but I know that it contained some broad language about what rights the magazine was purchasing. That, too, is part of the problem. Muchnick says he hopes PRC will make writers more careful about what they sign. OMI is now focusing on working out a similar agreement with Information Access Company, based in Foster City, Calif. According to Muchnick, an unreceptive IAC has suggested that OMI's beef is really with the publishers who signed copyright agreements with the company. When asked about IAC's being singled out and accused of piracy, IAC publicist Maureen Carrig told me, "We do not have any comment." NWU has indeed taken its case to the publishers. President Jonathan Tasini is the lead plaintiff in a federal lawsuit against the New York Times, Mead Data Central, and other publishers and database companies over alleged copyright violations. The case may be heard early next year. And hundreds of writers -- including Erica Jong, Barbara Kingsolver, Norman Mailer, and Gore Vidal -- have complained to the New York Times about its decision to blacklist any writer who won't surrender electronic reprint rights. The campaign against the Times and a growing list of other publications is coordinated by the NWU, the Authors Guild, and the American Society of Journalists and Authors. Muchnick says: "The publishers are making our case for us. They know they're not going to prevail on the law, so they're going to use their power in the marketplace to gain what would not rightfully be theirs." Muchnick says there are many ways for writers to protect themselves, including selling their rights for a higher initial payment instead of going with a royalty system. For example, the Bay Guardian pays me a small premium for the right to reprint this column on Guardian OnLine. Sorting out the process of protecting copyrights in cyberspace will only get more complex. Muchnick says he simply wants to make sure that writers have a seat at the table when the solutions are hammered out. "Publishers are trying to seize control of the electronic repackaging of traditional magazine articles. We just want good faith negotiations -- which we don't have now." The West Coast office of NWU can be reached at 337 17th St., Suite 101, Oakland, CA 94612; (510) 839-0110; nwu@netcom.com; or ftp://ftp.netcom.com/pub/nw/nwu, or contact the Bay Area local at (510) 839-1248. __________ Craig McLaughlin (cybrshck@aol.com) is a syndicated columnist in Olympia, Wash.