Protecting Your Electronic Rights

by Moira Allen

Electronic rights are becoming one of the most hotly debated (and contested) issues in the writing industry. How are these rights defined, and how are they used? Most of all, how are writers affected by this controversy?

In 1997 I surveyed 600 e-zines and 425 print magazines with websites, in an effort to determine how each group of publications was addressing the issue of electronic rights. More than 100 e-zines and 90 print publications responded. The results of the survey brought to light four areas in which writers need to take precautions to safeguard their rights: Contracts, terminology, electronic archiving, and personal website publishing.

Rights and Contracts

Not surprisingly, print magazines and e-zines tend to view issues of electronic publishing quite differently. While an e-zine's entire existence is electronic, most print magazines surveyed seemed to regard their on-line presence as an extension of their print distribution (or, in many cases, simply as an advertising vehicle).

Nevertheless, print magazines were far more interested than their electronic counterparts in securing electronic rights -- if not for the present, then for the future. "Just as writers need to protect their articles, so must publishers protect their properties once they go on-line," noted Charlie Simpson, EIC of Enterprise Systems Journal.

This difference was reflected in the two groups' approach to contracts: Only 17% of the e-zines offered any form of contract, compared to 76% of the print publications. Some e-zines seemed to regard contracts as contrary to the spirit of the Web: "Let me introduce you to a concept called 'trust'," one editor declared. Others spoke of "e-mail and a handshake" as the preferred way of doing business.

Electronic publications were equally casual in their approach to "rights." The majority stated that "we don't use any rights" or "all rights remain with the author." Many seemed to believe that if no money changed hands, no rights were exchanged either.

This can be a dangerous situation for writers, who need to be aware that just because a publication doesn't "claim" any rights, that doesn't mean rights haven't been used. Publication of any kind constitutes a "use." Authors who submit material to electronic markets under the misapprehension that "no rights" are being sold should know that other markets are likely to consider that material "previously published" and either refuse to consider it or treat it as a lower-paying reprint.

Print publications, on the other hand, were generally quite clear on the rights being purchased. Despite the scare stories circulating about the publishing world's rush to rob writers of their rights, only 17% of the magazines surveyed demanded "all rights" (and some of those considered the demand negotiable). Most (74%) purchased some form of "first rights," while 24% requested "one-time rights."

That's not the whole story, however. While most of the magazines used some form of electronic rights (usually by posting "selected articles" on a website), only 11% actually negotiated those rights separately from print rights. Most alarming were the number of publications (40%) that contended that the right to use material electronically was "included" in the purchase of "first rights" (such as FNASR).

This may prove a significant bone of contention. The ruling in the 1997 Tasini case clearly stated that "first use" does not constitute the right to use the same material "first in any medium." Thus, the purchase of FNASR or "first worldwide serial rights" does not necessarily guarantee a publication the right to reproduce the same material on the Internet.

Writers can take steps to protect themselves in this area by (a) ensuring that they have a contract with their publishers, even if they must develop that contract themselves; and (b) ensuring that the contract states specifically what rights will be used, and where, and how. If you know that a magazine has a website, but the publisher's contract does not specify whether your material will be posted on the Internet, ask!

Speaking of Terms

The misuse of the term "first rights" points out the problem facing publications today: The fact that no adequate terminology as yet exists to describe "electronic rights" and the various ways those rights can be sliced and diced.

FNASR, for example, is inadequate to describe Internet publication, because it refers to a publication's distribution (rather than where the publication originates). As 86% of the e-zines noted, their distribution is "worldwide," and the same can be said of any print publication's website as well. "It is impossible to restrict distribution to North America, therefore publishing ... cannot be construed as limited to North American rights," says John Edwards of Ceteris Paribus.

Of those e-zines that do negotiate for rights, some are beginning to address the problem. Some request "one-time" or "one-time electronic rights," while others request "first use," using terms such as "First Exclusive Electronic Rights" or "First World Electronic Rights."

The term "electronic rights" itself, however, is inadequate for the task. This term has traditionally been used to cover any form of electronic media or publishing, including software and CD-ROMS, as well as Internet publishing. However, publication on a website is clearly very different from publication in, say, a CD-ROM format. (Ultimately, website publication may also need to be distinguished from, say, inclusion in a fee-based database.)

Eva Rose of GiftSurfer's Digest proposes a new term: "First Internet Publication Rights." This has the advantage of specifying "when" (first) and "where" (Internet) the material will be used. Part of the writer's task may be to help editors develop contractual terminology that more accurately reflects how and where material will actually be used. By helping editors in this area now, we may be able to avoid the publisher's "easy out" clause: A demand for all rights, in perpetuity, in any medium now existing or ever to be invented, including 23rd-century Klingon data crystals.

Archiving: Online Forever?

E-zines and print publications tend to differ in how much of their content is posted on-line. For e-zines, obviously, the answer is "all" -- e-zines have no other form of distribution. For print magazines, however, the answer is usually "selected articles" (50%); only 13% of those surveyed said that they posted their entire issue on-line. Many responded that they posted only in-house materials, "teasers," or promotional material intended to attract subscribers.

Once that material goes on-line, however, it tends to stay there. The word most commonly used by 29% of the e-zines and 61% of the print publications to describe their archiving procedure was "indefinitely." (Another common word was "forever.") Other print publications archived back issues on-line for 1-6 months (21%) or up to two years (11%).

At the same time, those publications that purchased only "first" or "one-time" rights generally stated that the right to resell the material reverted to the author "immediately" after publication. For print magazines, that meant when the print publication containing the material was issued; for e-zines, it meant when the "current issue" became available on-line (or was e-mailed).

Authors may need to ask a serious question here: What does "first use" mean if one's material is perpetually available on the website of a previous publisher? In the print media, back issues are difficult and sometimes costly to obtain; on the Internet, however, they are often only a mouse-click away. This means that an article published a year ago may be as accessible to the reader as one published last week. Such ready availability may have serious implications for authors attempting to market their work to competing (or similar) publications. Can one honestly sell "one-time exclusive rights" if the material still remains available on a previous buyer's website?

When marketing on-line, this becomes an important issue. Many e-zines have no interest in claiming a writer's "print" rights, but do request exclusive electronic use. (Some specify a timeframe for that exclusivity; others do not.) If by selling print rights, however, an author risks having material reproduced or archived on-line, s/he may be unable to make a guarantee of "exclusivity" -- even if the author does not sell the material to a specifically electronic market.

Eventually, a new term may be needed for this form of use, such as "Internet Archiving Rights" (plus a statement of the duration of those rights). In the meantime, authors need to know not only whether their material will be posted on-line, but how long it is expected to remain there.

Your Website: Personal or Publication?

Many writers use personal websites as a place to showcase their unpublished works: Stories, poems, articles. But is this such a good idea, if one's ultimate goal is to sell those works?

The answer is "maybe yes, maybe no." Of the e-zines surveyed, 71% said that they would consider publishing a piece that had already appeared on an author's website -- but 23% would regard it as "second use" (i.e., a reprint). Print publications were less generous; only 50% would even consider such material, and of those, more than half regarded it as "second use" and would offer only reprint rates rather than full price.

Some respondents noted that the decision would depend upon the quality of the material, where the material had actually appeared, and whether the website was "high traffic." Others suggested that the material would have to be substantially rewritten, and many e-zines noted that they would want the material to be removed from the author's website first.

So is a website a "publication"? One viewpoint is that an author's personal site is more like a huge electronic bulletin board: Friends and family may drop by to see what you've "posted." Another view, however, is that a website is the electronic equivalent of "self-publishing": What matters is not how many people view it or whether you charge for the material, but that you're making it available at all.

On the Internet, the lines between "display" and "publication" blur quickly, and often not to a writer's advantage. The best bet, therefore, is usually to sell the material first (if possible), and then to post it on-line when one has the right to do so. "We'd rather see a writer get paid for an article in a real paying paper publication and then reprint it online," says Ken Wronkiewicz of Gearhead. Otherwise, personal website posting may compromise your ability to sell "first rights," either electronically or in print.

Is There Gold in Them There Websites?

While some magazines are reaping a profit from reselling articles to databases or offering them on a fee-per-use basis, many are not. Most magazine websites are freely accessible, and while a publication may be gaining new subscribers from such sites, it would be difficult to determine how much any single article contributes to a magazine's increased revenue (if any). "Writers... seem to be living in a dream world regarding how much money is to be made on the Internet," says Jeff Becker of PWC Magazine.

When it comes to the potential of lost rights, however, writers may be facing a nightmare. When magazines decide to bypass the whole controversy by demanding "all rights," or when electronic rights are "assumed" to be part of "first print rights," or when a magazine's electronic archive conflicts with another publication's demand for exclusivity, writers lose. Increasingly, writers are facing a world in which articles can be sold only once -- and that may potentially prove a far greater loss than any revenues magazines fail to share from "web profits."

Already, lawsuits have been filed over the issue of electronic rights. Before doing battle, however, writers need to take a careful look at what they stand to gain -- and what they stand to lose. Our most important assets are tomorrow's rights, not yesterday's fees -- for without those rights, we will have no fees. Perhaps, by working with editors and publishers to establish appropriate (and mutually satisfactory) terminology and rates, we may avoid some of those battles in the future.

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