This post is part of a series of evidence summaries for the 21 for 2021 project. The 21 for 2021 project uses empirical evidence catalogued on the Copyright Evidence Portal to answer 21 topical copyright questions for the 21st century. In this post, Ula Furgał (postdoctoral researcher, CREATe) identifies empirical studies concerning the position of authors in the press sector and their relationship with press publishers, asking whether the interests of authors are separate from those of press publishers.
Introduction: press publishers’ right as a spark
In the last couple of years, the discussion on the press publishers’ right, a new neighbouring right introduced in the European Union by the Directive on Copyright in the Digital Single Market, has drawn copyright scholars’ attention to press publishing. This does not mean that press publishing has been a copyright-free zone before. Publishing of newspapers, magazines and other periodicals lies within the creative industries. Journalists, as well as other contributors to press publications, enjoy copyright in their works. Newspapers and other periodicals are often considered collective works, with copyright vesting with the publishers. Pursuant to the work-for-hire doctrine, journalists’ copyrights are often owned by the publishers, freelance authors enter licensing (or assignment) agreements to publish or decide to self-publish their works.
The discussion on the press publishers’ right often grouped authors of journalistic content and publishers together, juxtaposing all (traditional) press sector stakeholders against big digital platforms. But what exactly are the dynamics between authors, publishers and other rightsholders in the press sector? Are the interests of journalists aligned with those of publishers, or is there a push-and-pull between the groups? Do the interests of journalists employed by the publishers and those working as freelancers differ? Is the position of journalists and other contributors to press publications comparable to that of musicians, photographers and performers in other creative sectors? Is the fair share in the revenues derived by digital platforms such as Google and Facebook a concern for journalists? Were those questions a matter of enquiry?
Existing evidence: journalists fly under the radar
To answer those questions, I referred to the Copyright Evidence Wiki. The Evidence Wiki codes studies by a number of categories. Since I was not interested in the methodology used, I decided to follow three content-based categories: industry, policy and fundamental issues.
The Evidence Wiki groups all forms of publishing together within the industry category of “Publishing of books, periodicals and other publishing”. Out of 225 studies listed in this category, and only eleven directly concern press publishing, and only one focuses on authors. Four studies address the effects of digitalisation on the press sector. The Deloitte (2016) report analyses impact of web traffic on the traditional press publishers’ revenues; Chiou and Tucker (2011) enquire into how the operation of content aggregators influences users’ behaviour and their willingness to further investigate aggregated content; Calzada and Gil (2016) and Athey, Mobius and Pal (2017) look into the effect news aggregators have on traffic to news outlets. The second group of studies, focuses either on the EU press publishers’ right (Van Eechoud (2017), CIPIL (2016), and Bently et al. (2017)) or copyright protection of press publications in general (Danbury (2016)). A study of NERA Economic Consulting (2015) links both of those issues, analysing the impact of Spanish press publishers’ right on the competition and online traffic to news outlets. A study by Haveman and Kluttz (2014) examines press publishing from a very different perspective, as it looks into the development of American copyright in the 18th and 19th century and its effect on the magazine industry.
The only study explicitly concerning authors in the press publishing sector is the one by Aufderheide et al. (2013). It enquires into the journalists’ perception of the fair use in the US, asking whether copyright concerns inhibit journalists’ reporting. The study sheds some light on the journalists’ sources of knowledge about copyright and their views on others using their work. It is, however, only the publishers who are descrobed as copyright holders.
When the additional category of fair remuneration is applied to the studies concerning publishing, 38 studies providing an empirical data on authors’ earnings appear. Those studies offer a glimpse of the journalists’ financial status. Whereas they do not focus solely on journalists, some of the studies distinguish journalists as a distinct creators group, more specifically, a writers sub-group. A survey on authors’ earnings and contracts funded by Authors’ Licensing and Collecting Society (ALCS), and conducted periodically by independent academics allowed respondents to either describe their occupation as a “journalist” (Gibson, Johnson and Dimita (2015) and Kretschmer, Gavaldon, Miettinen, Singh (2019)) or choose newspapers/periodicals as a main genre they earn money writing (Kretschmer and Hardwick (2007)). Information gathered from all surveys has been, however, analysed jointly, without distinguishing between different types of writers.
Burgess and De Rosa (2017) on the other hand, provide data on authors’ remuneration in four jurisdictions, with data on magazine writers displayed separately. Guibault and Salamanca (2016) go a step further, as along with providing information on remuneration of journalists (both print and audiovisual), they make recommendations on strengthening authors’ position in contractual relationships with publishers. Those recommendations hint that there might be some push-and-pull between journalists and publishers, similar to the dynamics in other creative sectors considered in the study (authors of books and scientific/academic articles for journals; translators (both literary and audiovisual); and visual artists). The report’s recommendations, including addressing the position of freelance authors, allowing those who are economically dependent to claim employee status, apply to all author groups considered in the report.
Another way to find studies relevant to my enquiry, was to apply an additional fundamental issues category of “Harmony of interest assumption between authors and publishers (creators and producers/investors)” to the studies concerning publishing. This search returned 27 studies, out of which only two (being already mentioned here: Danbury (2016) and Bently et al. (2017)) focus on the press publishing sector, but not on the relationship between journalists and publishers itself.
Conclusion: a place for new research
The relationship between journalists and publishers, and the harmony of their interests (or lack of it) remain largely unexplored. Whereas some information is available on the levels of remuneration of journalists and the mechanisms of compensation, journalists’ approach to copyright, and the value they assign to attribution and control over dissemination of their works remains largely unexplored. Even though the introduction of the EU press publishers’ right started, now a global, discussion on regulating digital platforms’ use of news content, it has not led to the exploration of the internal dynamics between publishers, authors and other rightsholders within the press sector.