Byline Banditry: A Call to Reform – Jonathan McCully

On the 24th of June 2013, freelance journalist Sheron Boyle wrote a piece for the PressGazette detailing her concerns about a worrying practice which has become increasingly more prevalent in the newspaper industry; “byline banditry.” This is when a freelance journalist sells their first rights of publication to a paper, only to find after publication that their work is being accredited to the staffer for whom the freelancer had written the piece.Following the article, former News of the World Journalist (and now freelancer himself) Tom Latchem tweeted:

https://twitter.com/theboylatch/status/349439280189419523

https://twitter.com/theboylatch/status/349439709631627264

Sheron Boyle notes that people in the industry say: “It’s the byline on the cheque that matters.” However, as she points out, writers want to protect their business or brand just as much as they want to receive the revenue that comes in from selling a story.

Reporters and journalists such as Bob Woffinden, Ian Cobain and Nick Davies have all attracted solid readership bases because of the genre of stories they report on, and the quality of pieces they write. Surely, therefore, their names and reputations are invaluable. Journalism is no longer the straightforward conveying of news, it is a much more creative and skilled process, and will often include extensive labour through research and investigation. Yet, the moral right of paternity, in its current form, comes with a broad exclusion for journalistic pieces. This means that work which is written for the purpose of reporting current events or journalism does not have to carry the writer’s name by law. Perhaps by highlighting the current practice of “byline banditry,” Sheron Boyle raises a serious issue which inevitably suggests that this area of the law is in need of reform.

The Copyright, Designs and Patents Act 1988

Under Section 77(1) of the 1988 Act, the author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right to be identified as the author or director of the work in certain circumstances. However, Section 79(6) explicitly states that:

The right does not apply in relation to the publication in—

(a)  a newspaper, magazine or similar periodical, or

(b)  an encyclopaedia, dictionary, yearbook or other collective work of reference,

of a literary, dramatic, musical or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication.

The work of freelance journalists clearly falls into this category, they write pieces with the intention that they will then sell them on to newspaper publications. This section is bolstered by section 79(5) which asserts that the right does not apply in relation to any work made for the purpose of reporting current events.

The Newspaper Industry: A Collaborative Process

There seems to be a clear intention behind the legislation to exclude work which is highly collaborative in nature. The more collaborative a work is, then the more difficult it is to find who all the authors are to be identified. An encyclopedia is the most obvious example of this; for example, it would be extremely difficult to attribute all the authors of a Wikipedia post.  This argument was raised specifically in relation to Newspapers when the Bill was being debated in the House of Lords. Lord Howie of Troon said at the time:

I have no objection to authors being identified, journalists having by-lines and photographers being properly identified when their work is reproduced in magazines and encyclopaedias. The trouble is that when one deals with “composite works” […] one finds that each individual item becomes a team effort. In a sense that situation is provided for because a magazine might well place on its contents page a list of staff including writers, editors, and so on, so that in a general sense their moral right to participation in that magazine has been recognised in a general, if not specific, way. I am thinking in this instance about the magazine as a whole and not the individual article.

When one comes to an individual article, one may well find that it has passed through the hands of its author, an editor, a re-writer, a sub-editor, a typographical write-out man, someone else who might have composed the headlines, and so on and so forth. 

This observation seems to somewhat miss the point, these individuals involved in the process of news-gathering and publication might not be contributing as authors. In fact, Lord Howie even refers to the original source of a story as its “author.” The moral right of paternity, like copyright, is after all an author’s right and so is to be granted to an author regardless of how many people contribute towards the resultant, published work. Bently and Sherman believe that, according to copyright law, although a person may play an important role in the production process, they still may not be treated as an author. In relation to book publishing, for instance; a copyeditor, a jacket designer and a typesetter all play an integral part in the publishing process, but they will not be treated as the author of the work. In Fylde Microsystems v Key Radio Systems, Laddie J likened the skill and labour of a software technician in that case to that of a proof reader, suggesting that proof readers do not offer the correct type of contribution to be the author and owner of certain copyright works ([30]). It therefore seems to be a somewhat artificial argument to disapply the right to be identified simply because many people are involved in newspaper publishing, the newspaper industry is not the only industry which is highly collaborative. Yet, it is placed in a special position when it comes to the right of paternity.

As was noted by the United States Court of Appeals for the Ninth Circuit:

Progress would be retarded rather than promoted, if an author could not consult with others and adopt their useful suggestions without sacrificing sole ownership of the work. Too open a definition of author would compel authors to insulate themselves and maintain ignorance of the contributions others might make. Spike Lee could not consult a scholarly Muslim to make a movie about a religious conversion to Islam, and the arts would be the poorer for that.

[A] broader construction […] would extend joint authorship to many “overreaching contributors,” […] and deny sole authors “exclusive authorship status simply because another person render[ed] some form of assistance.” Claimjumping by research assistants, editors, and former spouses, lovers and friends would endanger authors who talked with people about what they were doing, if creative copyrightable contribution were all that authorship required. ([27]-[28) (Aalmuhammed v Lee) 

The fact that collaboration occurs in the creative industries cannot be ignored, however author’s rights should still be vested with the original author of the work. The right of paternity included. After all the original authors are the ones who are being paid to relinquish their rights in what they have created before changes are made to it.

The Employee Problem

Lord Howie further recognised that staff on a magazine or other composite publication will usually be identified in the staff section of the publication. Their moral right to participation is being recognised in a general way in this industry practice. However, what about the freelance journalist? They are not staff and do not enjoy this benefit.

Under Section 11(2), employees do not benefit from exploiting the copyright in the work they produce; the first owner is their employer (i.e. the newspaper or magazine). Editors, re-writers, sub-editors and typographical write-out men contribute to the publication in the knowledge that their employer will be the eventual copyright holder. Their employers will effectively be in the position of an author under copyright law as they can exploit the rights to their benefit. Furthermore, employees do not enjoy the moral right to be identified as the author of work they contribute to (Section 79(3)). Therefore they must also accept that their labour and effort as employees does not have to be recognised through attribution under the law.

On the other hand, freelance journalists find themselves in a somewhat anomalous position. They own the copyright in their work and can exploit it to their own benefit, yet do not benefit from the right to have that work attributed to them when published and distributed to the public.  This seems somewhat unjustified. They, more so than the staff of newspapers and magazines, have a brand to exploit. They are a business in themselves. Therefore to not name a freelance journalist on the pieces they have written can have a knock-on effect on this business. As NUJ freelance organiser John Toner has said:

Bylines are vital for freelancers in establishing their reputations.

Denying bylines would prevent the freelance gaining recognition for his/her work and would make it difficult to prove to the potential client that the freelance has experience.

Freelance Journalist’s names are their livelihood and so should be offered a somewhat stronger form of legal protection when it comes to being identified on stories, they are not tantamount to employees.

Keeping Up The Pace and Keeping Down The Price

Lord Beaverbrook in the Lords Debate on the issue of paternity rights observed the two main arguments for disapplying these rights in the context of newspapers. These were:

First, that every article would require a by-line, including those only three of four lines long and, secondly, that in many instances it is impossible to identify the author because there are different contributors to a piece, or because a work is heavily edited to match a particular house style

He went on to argue that:

The fast-moving nature of this industry would make the operation of moral rights very difficult indeed. All this could lead to less use of freelance writers, and at worst restrict the supply of information.

The business of supplying news seems to just get faster and faster with every advance in technology. This has seen more and more of a reliance on copying and pasting from wire copies to keep up with breaking stories. Many wire copies will not include the name of a reporter. Nick Davies noted the prevalence of wire copy use in Flat Earth News. In 2006, ABC TV’s website was recycling agency copy verbatim for 91% of their website stories, MSNBC for 81% of their news stories, the Guardian for 62%, and CNN for 59%. Chasing up the original reporters behind these stories can be difficult and cumbersome, especially if the reproduction of the wire copy is only “three or four lines long.”

However, it is important to remember that by removing Section 79(6) from the 1988 Act does not necessarily mean these reporters would have to be named. Minus this section there are still safeguards written into the legislation. The moral right still has to be asserted (section 78(2)) and a fair-dealing defence will still be available for the reporting of current events (Section 79).

The Requirement of Assertion

Under Section 78, the right to be identified can only be enjoyed if it is asserted pursuant to section 78(2) which states that:

The right may be asserted generally, or in relation to any specified act or description of acts—

(a)  on an assignment of copyright in the work, by including in the instrument effecting the assignment a statement that the author or director asserts in relation to that work his right to be identified, or

(b) by instrument in writing signed by the author or director.

Section 78(2)(a) is only binding on the assignee or a person claiming through the assignee regardless of notice, whilst 78(2)(b) will only be binding on those who have had notice of the assertion. This will reduce the costs placed on newspapers to identify the names of freelance journalists. These journalists usually assign their publication rights in exchange for suitable remuneration, therefore it can be made clear to a publication on assignment that moral rights are being asserted and by whom they are being asserted by (i.e. the name of the author). If it is not made clear on an assignment, an instrument in writing will only bind those who know about it. This puts more of an onus on the freelance journalist to make it clear to the publication that they want to be named on their work.

Fair Dealing

This writer believes that section 79(5) should be subsumed into section 79(4) of the 1988 Act. As the legislation currently stands, any work that is written for the purpose of reporting current events is excluded from the right of attribution. This is too wide and is likely to exclude freelancers from having their names attached to certain stories. Having it subsumed into the fair dealing defence will bring a balanced approach to the protection of the right of paternity. Therefore if wire copy is being reproduced in such a way that does not breach confidentiality, does not commercially conflict with the business of the wire agency, and the amount reproduced is not overly extensive or unreasonable, then a newspaper will not be required by law to find out the name of the author in order to identify them on the reproduction of the wire copy or story. However, freelance journalists are often in the business of producing spreads and exclusives. These are currently being caught under the overly broad section 79 exception on paternity rights relating to journalistic activity. Exclusives by their very nature have not been made public, that’s what makes them exclusive and therefore valuable. By taking this work, reproducing it and not attributing it to the freelance journalist is not fair dealing. The practice is unreasonable; the newspaper is passing off a valuable story as its own and denying the freelancer their recognition (and therefore their livelihood). This form of “by-line banditry” needs to be legally recognised as being unreasonable so the practice can become less prevalent.

Conclusion

The recent debate on “by-line banditry” has raised a number of important issues in relation to the very broad protection given to newspapers when it comes to the author’s attribution rights.  Exclusions from this right may be justified if small pieces of wire copy are being reproduced to keep up with current events or where it is difficult to identify who the journalist behind the story is. However, these situations would be adequately protected by a defence of fair dealing for the reporting of current events and by the requirement of assertion, without excluding from protection exclusives and spreads provided to newspapers by freelance journalists. This writer would suggest the 1988 Act is in need of reform in this regard. Section 79 should be rewritten to remove the exception for works written for the purpose of reporting current events or for the purpose of publication in newspapers, magazines or periodicals. Instead the exception in relation to reporting current events should only be allowed where there has been fair dealing with the work.

This post originally appeared on the Mediabelf blog and is reproduced with permission and thanks.