This article by Kathy Foley originally appeared in Journalist.ie on 3 February 2010. Reproduced by permission of the author.
Copyright protects the works of artists, including journalists. Only the copyright owner can make copies of their work, distribute those copies or produce derivative works based on the original work. It is the actual work that is copyright; ideas and concepts cannot be copyrighted.
Under Irish and international copyright law, the original author always owns the copyright to their work (whether or not they use a copyright symbol) unless the author signs their rights away to a third party.
This extract from Print Journalism by Richard Keeble (1995) explains the basic concept of copyright very well:
“Anyone who writes…broadcasts,photographs…or does any other act resulting in an original physically expressed communication (even posting a letter or sending an email) automatically gets their work protected by copyright. Copyright owners receive worldwide protection under international treaties like the Berne Convention which places formal requirements on member states to respect the copyright in works of other member countries…You can grant licences and receive payment. You can sell your work over and over again and the rights remain yours. You can refuse permission to use your work and sue anyone who infringes.
This is unless, of course, you have not waived, transferred or conveyed your rights to someone else, in which case none (or very little) of the above applies…As a condition of acceptance, many publishers seek to oblige freelances to convey their copyright to them.”
Unless the publisher asks the freelance to sign a contract assigning all rights to the publisher, the freelance retains copyright, can re-sell the article and can demand a fee for reproduction on another medium by the original publisher, although re-sales and the payment of reproduction fees rarely happen in practice in Ireland. That said, if freelances want republication fees, they should specify when they are first selling the work that they are only selling first Irish rights (or whatever rights they are selling).
Over the past decade, there has been considerable debate in the UK, the US and internationally about electronic rights to material and the rights of journalists to be paid for every re-publication of their work in whatever medium, but this debate has been almost non-existent in Ireland.
Relevant legislation and international agreements
European Law
There is no EU copyright law, as such, but 164 countries (including Ireland) are signatories to the main international agreement on copyright, the Berne Convention of 1886. It asserts that copyright automatically belongs to the author, without the author having to assert their copyright in any way. Under this agreement, foreign authors are entitled to the same copyright protections in each signatory country.
The NUJ Freelance chapel in London says the copyright law of each European country applies in that country, while the Berne Convention also applies.
[Note the European Commission adopted a green paper on copyright in the ‘Knowledge Economy’ in 2008. If legislation were to follow in future, it could have some relevance regarding the re-use of freelance work on websites, in RSS feeds and in databases.]
Irish law
In Ireland, copyright is governed by the Copyright and Related Rights Act 2000 (as amended), which fully complies with European copyright directives and all international copyright and intellectual property treaties. (These include the Berne Convention, the Universal Copyright Convention, the Agreement on Trade-Related Aspects of Intellectual Property Rights [TRIPS] and the WIPO Copyright Treaty.)
The key points of the Irish copyright legislation pertaining to journalists are:
- Copyright does not rest with the author if the work is made by an employee in the course of their employment. The copyright of any article written by a staff journalist for the newspaper that employs them, for example, rests with the newspaper, not the journalist [Section23 (1) (a)] . This holds true unless any agreement to the contrary has been signed, which would be highly unlikely in practice.
- The staff journalist has some rights in respect to work done for a newspaper or periodical. They may use the work “for any purpose, other than for the purposes of making available that work to newspapers or periodicals, without infringing the copyright in the work”. Therefore, it seems a staff journalist would be within their rights to republish work on their personal website or in a book, although obviously, the employer should be consulted and, possibly, legal advice sought, to avoid later complications.
Freelance journalists and copyright
There is no specific mention of freelance journalists in Irish legislation, so therefore standard copyright law seems to apply. When a freelance journalist sells a piece of work to a publisher, they are selling first rights only, unless a signed agreement to the contrary is made. According to the NUJ (UK) guidelines on copyright, “Traditionally, what you sell to an editor or producer is a licence to use your work, once, in one territory, in one medium”.
The copyright always rests with the author, unless they sign away their rights, for example, in a contract. This is formally known as assigning rights by an enactment. According to Section 120 (3) of the Copyright Act 2000, an assignment of copyright is not effective unless it is in writing and signed by or behalf of the assignor (ie the author).
The author has the right to copy the work, make it available to the public, or adapt it. If anyone other than the author does this with all or a substantial part of the work, they are infringing the author’s copyright.
Re-use of freelance contributions
If a publication reuses a freelance’s work content in another form – on their website, as a reprint, in syndicated copy or in a RSS feed – technically speaking, they are obliged to ask the freelance for permission and should pay them for the reuse. In practice, however, this does not tend to happen in Ireland.
Re-sale of work by a freelance
Once a freelance has not signed a contract with a publisher and has not assigned copyright to the publisher, they own the copyright over their work and are legally free to sell it elsewhere, at any time, as it is or amended. In practice, this does not happen very much in Ireland either, largely because of the small size of the local market and the desire of journalists to maintain good working relationships with editors.
Freelances and contracts
If a publisher wants a freelance to sign a contract, it is up to the freelance to decide if they want to do so. The publisher can request all rights and gets them if the freelance signs the contract. Again, contracts between freelance journalists and publishers are rarely used in practice in Ireland.
Although the Copyright Act would seem not to grant any legal standing to any verbal agreement between freelances and editors about rights, specific legal advice would have to be sought to clarify this, as contract law may apply.
The intellectual property specialist at the Department of Enterprise, Trade and Employment was at pains to point out the following: “If you require specific information regarding aspects of copyright you may wish to consider seeking legal advice as there may be a number of aspects of intellectual property law, contract law or other areas of relevance and the field is quite legalistic.”
The specialist added: “The terms and conditions of the contract between the freelance journalist and the person or organisation for whom he or she writes would also need to be considered. Whether or how authors assign or licence their copyright in a work would be important. It can be quite a complex area and I reiterate that legal advice may be useful.”
Freelances and copyright – the working reality in Ireland
In as much as copyright is dealt with at all by freelance journalists and publications in Ireland, it is on an ad hoc, informal basis, with the freelances most concerned about keeping a good working relationship with editors and anxious not to upset them by reselling work to a competitor. On the flip side, publishers do not seem to pay much attention to copyright law and, in some cases, reproduce work without paying any more to do so.
The general consensus among working journalists is that work, once done, is the freelance’s to do with as they please, but most do not attempt to re-sell it in Ireland, because the market is so small.
The practice does not seem to vary by media, but further research on radio and television would be necessary to confirm that.
Some interesting points that arose from the email discussion:
- Most respondents never discussed or negotiated rights at all, either in their role as freelance journalists or as editors dealing with freelances.
- One journalist (a senior section editor) said he believed the Irish Times had increased their freelance rates a number of years ago to take account of online usage.
- Only two of the journalists I spoke to had signed freelance contracts. The first said his contract with a magazine publisher did not actually mention copyright, although his view was that the publisher in that case assumed the copyright was theirs. The other signed a contract with a national broadsheet , which assigned all rights to the publisher. Interestingly, others who freelance for the same newspaper or who are editors on the same newspaper had not signed such contracts, either as a contributor or as a representative of the publisher.
- Another freelance journalist said the Irish Times had always told her to charge any third party that wanted to take any articles she had written for the Irish Times and reproduce them on their website. In other words, the copyright was hers and the right to charge for reproduction was hers. The journalist said she did not do so for fear of damaging her professional relationship with those companies.
- A number of respondents mentioned the freelance practice of multi-pitching, where a news story is pitched and sold by a freelance to a number of different publications on the same day. This is common and accepted practice, especially by regional stringers.
- A number of journalists drew a distinction between articles they conceived themselves and pitched to a publisher, and those conceived and commissioned by a publisher. They were particularly unlikely to re-sell the latter, although technically the copyright still rests with the journalist.