Freelance journalists are still being pressured into signing dodgy contracts nearly two years after their union won the right to represent them in wage negotiations.
Standard contracts offered up by our four largest print media organisations and obtained by Crikey show independent hacks continue to confront a range of dubious clauses that impinge on their moral rights, strip them of meaningful copyright, increase their legal liability and force down word rates.
In May 2010, the Media, Entertainment and Arts Alliance got the green light from the Australian Competition and Consumer Commission to negotiate on behalf of thousands of freelancers scrapping with Fairfax, ACP Magazines, News Limited and Pacific Magazines. But despite some hoo ha at the time, progress for Australia’s freelance army has been glacial.
While the ACCC decision meant freelancers were given a free pass on collusion — the usual allegation when businesses get together to strong-arm other firms — major publishers were able to leave contracts stillborn by refusing to bargain. And unlike regular enterprise negotiations, freelancers, who are often a one-woman small business complete with an ABN, aren’t able to withdraw their labour to enforce a corporate boycott.
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The MEAA, who has 1500 freelance members on its books or about 9% of its total membership base, says publishers have refused to speak to them, meaning clauses banning syndication (a freelancer’s main revenue source) remain in place.
Crikey understands that while clauses saddling scribes with the cost of defamation action have been curbed, the grab-bag of onerous contracts on this 2010 whistleblower website remain broadly the same.
Freelance gardening writer Catherine Stewart wrote for Pacific Magazines’ titles Your Garden and Better Homes and Gardens until she got jack of their demands in 2010 (Stewart now runs her own online publishing venture, having poached many of Your Garden‘s more senior writers).
The PacMags contract (read it here) draws a distinction between “commissioned” work and that offered on a “supplier” basis. If it’s commissioned, then the author “assigns and licensees have the right to utilise the material … in any media currently known or hereafter created throughout the world in perpetuity, including (without limitation) any other magazine title and any website of the publisher and any related entity.” In the flash of a pen — for example, with a minor change to the word limit — a supplier piece, which attracts a default 12-month exclusive license, could easily transform into a commissioned one.
Stewart also penned pieces for News’ magazine arm NewsLifeMedia’s Gardening Australia before the firm began to insert a “retrospectivity” clause granting the company control of her archive. Buried in the new News contract issued mid-last year is a statement on “Previous Works”, defined as anything with an on-sale date of January 2006 and after. This effectively gave News access to hundreds of Stewart’s own stories, without any payment.
Last year, NewsLife, which also publishes big titles including the MasterChef Magazine, Vogue and GQ Australia, introduced its new “contributor agreement” (read it here) that allows writers to keep copyright, but grants News an “exclusive, world-wide, perpetual, royalty free licence” for two years, after which the freelancer has a limited number of permitted uses of their material.
Of course, disappointing word rates across the industry (the Fairfax feature rate oscillates between 35 and 75 cents a word) mean the major way to make money as a freelancer is by syndicating your work. However, if News sublicenses the piece then authors are only eligible for 30 cents a word in compensation from the third-party publisher or 40% of the total fee. PacMags’ freelancers get 40%.
Still, News’ contracts, which it defends as “entirely reasonable” and “fit for purpose”, look pretty solid next to other dubious efforts such as Fairfax’s 2009 “contributors contract” that banned regular writers from working for other Australian outlets without written permission and granted the company “a worldwide, irrevocable, exclusive licence to reproduce and deal with Fairfax Work by all means whatsoever”. (Fairfax issued a no comment to Crikey on the issue).
Freelancers are now beginning to register on the political radar. In his address to the Canberra Press Club last week, Insecure Work inquiry head and former deputy PM Brian Howe unloaded on the trend towards rampant casualisation, highlighting the massive 40% of the population in irregular employment.
In his submission to the inquiry, MEAA federal secretary Chris Warren highlighted the continuing problems faced by freelancers on pay, copyright, and moral rights, even though many work under direction from an editor in a manner eerily similar to that of a regular employee. As a contractor, neither the Fair Work Act nor the National Employment Standards apply and some freelancers are being forced to purchase their own public liability insurance to guard against defamation snafus.
In addition to changes to unfair clauses, the union is pushing for a raft of changes to the Competition and Consumer Act, including statutory minimums for certain commercial contracts, a proper definition of an unfair contract, a compulsion on publishers to negotiate and an enshrined right for freelancers to withdraw their labour to force the issue.
Stewart, while still an MEAA member, is critical of its approach, saying they have basically run dead on the issue.
“I’ve thought several times over the past year that the MEAA should change its name to the Media Industry Alliance, for a more appropriate M.I.A. acronym,” she said.
“I think that there’s a strong perception among freelancers in the MEAA that employed journos see us as the enemy, rather than as comrades-in-arms. Without a powerful ‘house’ committee like there is at Fairfax and ACP, I can’t see freelancers ever having much traction,” she said.
In recent months the MEAA has slowly begun to fight back, launching a website specifically for freelancers that includes a standard model contract shorn of all the nasties that freelancers should avoid in negotiations. An associated explainer makes the important point that where an extensive licence is granted to the publisher it should be reflected in an increased word rate or revenue chop out. All legal liability should be automatically assumed by the publisher.
“Market conditions over the past two years have obviously created an extremely difficult environment for freelancers,” the MEAA spokesman Sean Brogan explained to Crikey. “We have had some success in obtaining an authority from the ACCC to collectively bargain on behalf of freelancers employed by the four big publishers, but we are pushing for further changes to the Competition and Consumer Act to create a fairer market situation for freelancers.”
And of course there’s always the other option of refusing to sign or returning contracts with red lines through it.
The former head of the Sydney Freelance Association, Rachael Jane Chin, told Crikey that “this issue goes beyond the welfare of current freelance journalists. What kind of future do aspiring journalists have when the number of employed positions are shrinking every year? We’ve got contracts out there that have become industry standard that say journalism is cheap and that journalists and the work of journalists are not to be treated with respect.”
She agrees the MEAA has been slow to act since the ACCC ruling was handed down.
“I think they just kept putting it in the too-hard basket, but this issue is just so fundamentally important … for what it’s worth, you’ve just got to get the lawyers in.”
Freelancers have had some minor victories — PacMags’ notorious 2010 contract that granted the company rights to a freelancer’s work anywhere in the world forever and appeared to indemnify the company against defamation claims has been partially wound back — but the contributor is still liable unless they are the victim of an introduced error. Arguably, News’ contract is stronger in this regard, specifically ruling out defamation claims unless the contributor has been knowingly reckless.
And Fairfax’s contract, amended in March 2010 with slightly more charitable clauses on outside work, still requires freelancers to waive their moral rights and bans the freelancer from selling their own work to a “competitor”. It does, however, rule out defamation liability. At the time, Crikey‘s Margaret Simons asked the ACCC to investigate whether Fairfax’s actions equated to unconscionable conduct but a response was never received (an ACCC spokesperson said it was unable to comment on the progress of any investigation, pointing Crikey instead to general definitions under the act and encouraging “those with concerns about contractual matters to seek independent legal advice”.)
The issue remains massively complex within and across the industry. Away from the four majors lies a complex web of individual agreements with smaller players, many with clauses cut and pasted. The practice is also widespread in technically separate industries exploiting similar skills like public relations.
The MEAA is also taking a broader view: “It’s important to remember that it’s not just the clauses that are a problem. It is the complexity of the market as there are thousands of freelancers and just as many contracts that have simply failed,” it says.
One labour movement insider agreed: “Organising freelancers makes herding cats look easy … and when publishers are that aggressive it’s basically lawyers at 10 paces.”
The freelance issue may already be leaching outside the freelance paradigm, where remuneration and copyright — however pared-back — actually exists. In its Howe submission, the MEAA highlighted the growing trend towards the “HuffPo model” of free or nearly-free web content drawn on by, among others, The Drum, The Punch and Crikey. The Punch do not pay for contributions at all while The Drum and Crikey pay just $100-$200 an item.
CORRECTION: On Friday (27 April 2012) a series of quotes and references in our article ‘How Australia’s media giants put the squeeze on freelance journos’ were wrongly attributed to Leonard Cronin. Crikey profusely apologises for any embarrassment this may have caused. The story has been amended.