Seminar 8 COPYRIGHT IN JOURNALISTS’ WORKS

JOURNALISTS’ COPYRIGHT In the publishing world, literary works are produced by journalists. While authors of books are seldom employees of publishers, it is common for journalists to be employees of newspaper, magazine or periodical publishers, although there are many freelance or independent journalists (i.e., not staff employees). Since many of journalists’ works are made within an employment context, ownership issues frequently arise:- Does ownership vest in the newspaper proprietor or the journalist?

Employed journalists – division of rights (after 30 July 1998) Where a literary, dramatic or artistic (not musical) work is made by a journalist: (i)in pursuance of the terms of the journalist’s employment by the proprietor of a newspaper, magazine or similar periodical (ii) under a contract of service (or apprenticeship); and (iii) for the purpose of publication in that newspaper, magazine or other similar periodical, then the employer owns all the rights except that the journalist owns the right to photocopy the written material and to include it in a book. Journalists cannot control digital uses of their work, such as reproduction on CD-ROM or on the Internet unless they have reached an agreement with the employer.

Freelance and independent journalists  In the absence of an agreement, the journalist owns the copyright  If the freelancer is commissioned to write the material, the proprietor (commissioner) will be entitled to use it for the purposes for which it was commissioned.

De Garis v. Neville Jeffress Pidler Pty. Ltd. (1990) 18 IPR 292 De Garis and Moore contributed articles which were published in two different newspapers. De Garis supplied his article to the West Australian as a freelance writer, while Moore wrote his article during the course of his employment as an employee with the Sydney Morning Herald. The respondent photocopied these articles for the purpose of distributing them to subscribers to their press-clipping service. The authors claimed that their copyright had been infringed by the respondent’s actions.

Decision of Beaumont J. De Garis owned all the copyright and had the exclusive right to reproduce the work in a material form. The statutory exceptions did not apply to De Garis since he was a freelance writer and was not employed by the proprietor of the West Australian under a contract of service. Hence, the respondent had infringed De Garis’ copyright In relation to Moore, a full-time employee with the Sydney Morning Herald, the Court held that the principle was to vest the copyright in the newspaper proprietor in so far as it related to publication in a newspaper and leave the rest of the copyright for the employed journalist to exploit. Resultantly, the respondent was enjoined from further infringement.

Consequences of De Garis Press-clipping agencies or media monitors must obtain permission of the copyright owners - the employed journalists or freelance writers, to reproduce their works. Before De Garis, it had been assumed that copyright resided with the media proprietors and press-clipping agencies used the copyright works under a “gentlemen’s agreement” which required them to carry a proper acknowledgment of the source of the material. The newspaper publishers were quick to realise the ominous outcome of the decision in De Garis, viz., that they may be restricted from fully exploiting the new commercial possibilities opened up by the networking and search facilities of electronic databases. Lobbying of the Government to repeal split ownership rule and thereby to confer the total ownership of copyright to newspaper proprietors in the works created by their employee-journalists. Hence, the reference to the CLRC.

Repeal of the rule recommended by CLRC’s majority Full copyright should vest in newspaper proprietors. Singling out of employed journalists for special treatment vis-á-vis authors in all other employment situations was objectionable Other reasons advanced by CLRC in support of its recommendation: upublishers pay for journalists’ services and provide all research facilities and training, including the use of expensive technical and electronic equipment; upublishers take all risks associated with the work of their employed journalists, including financial risks in relation to defamation actions; utechnological changes will increasingly make it difficult to distinguish between primary and secondary uses of journalists’ work; uin many cases it is difficult to identify the person or persons entitled to the benefit of copyright for secondary uses.

Amendments made in 1998 Employed journalists retain their book rights They also retain photocopying rights, especially for the purposes of media monitoring or clipping services However, electronic rights now vest with the proprietor Self-employed or freelance journalists retain all rights in their works, subject to a contract to the contrary.

Conclusion The majority of the CLRC suggested that employed journalists should not be treated any differently from other employed authors. But the law has worked satisfactorily in practice for the past 82 years, that the author is intended to be the primary beneficiary of copyright Since copyright works may be used commercially in numerous ways beyond their manifested use in the publisher’s business, the employed journalist should ordinarily be the beneficiary of such other (secondary) uses, and that the burden of contracting otherwise should be placed on the employer-publisher. However, the post-amendment law allows publishers to use freely their employee-journalists’ works via computer networks or pay TV services or for establishing computer databases.