Antitrust, Copyright, and Media Workers’ Rights

The NWU recently submitted comments to separate inquires from the U.S. Copyright Office and the Federal Trade Commission (FTC). Our response highlights the need for a wholistic approach to the economic conditions and rights of workers who are not “employees.” A proposition like this needs to recognize the intersectionality of copyright, labor, and antitrust law as they impact the livelihoods of writers and journalists.

If there is to be legal “reform,” it needs to include explicit recognition of the right of media workers—including those classified as “self-employed”—to organize and bargain collectively, in order to remove uncertainty and fear that collective action might violate antitrust laws.

Treating copyright, labor, and antitrust law as issues to be considered in isolation from one another denies the reality of working writers’ modern business models as freelancers and self-publishers. 

Even well-meaning reforms intended to promote “the publishing industry” as a whole, that fail to distinguish the interests of writers and other creators from those of publishers and other intermediaries, may further shift the balance of power against media workers, in favor of increasingly oligopolistic (book publishing) or monopolistic (e-book distribution) corporate behemoths.

Our comments to the Copyright Office were submitted in response to a policy study requested by Congress on the desirability of U.S. legislation that is modeled on recent measures enacted in the European Union and Australia. The point of these laws is to require online “news aggregators,” such as Facebook and Google, which profit from republishing articles, illustrations,  and excerpts from other sources, to share revenues with the original publishers.

NWU has been following the experience with these laws of our comrades in the EU and Australia through the International Federation of Journalists, in which we are an active member. The experience of our counterparts abroad, as well as the particularities (and from an international perspective, the peculiarities) of U.S. copyright and antitrust law informed our comments to the Copyright Office:

As an organization of writers and multimedia journalists, our concern is with the potential impact of new protections for publishers on the livelihoods of the individuals who create what the NOI [Notice Of Inquiry] describes as “news content”.

Despite the legal fiction of “works for hire,” publishers do not actually create the copyrighted works at issue in the NOI. These works are created by journalists. The future of journalism depends not so much on the future of news publishers—many of whom, especially online, are being disintermediated by self-publishers—as on the future of journalists’ ability to earn a living from our creative work.

From a perspective that centers the concerns of the affected community of journalists, question (4) (f) of the NOI is critical: “Should authors receive a share of remuneration, and if so, on what basis?” Our answer to this question is unequivocal: Authors should receive a share of remuneration, and it should be determined on the basis of collective bargaining.

One of the most important lessons we have learned from the experience of IFJ [International Federation of Journalists] members in other jurisdictions where ancillary protections for publishers have been enacted, including Australia and the member states of the European Union, is that additional revenues for publishers will not automagically “trickle down” to journalists. In the absence of a statutory definition of a share of revenues from an ancillary right that must be paid to journalists and other creators, a meaningful, legally-protected right to bargain collectively over the division of those revenues is essential….

Issues of copyright law raised by the NOI cannot be separated from competition (antitrust) law…. But the NOI also raises inseparable issues of labor law, especially as it applies to freelancers and self-publishers. Our rights are implicated as workers as well as copyright holders (or creators of works for hire).

The imbalance of bargaining power between the dominant “news aggregators” and the much larger number of “press publishers” (as these terms are used in the NOI), is mirrored in the imbalance of bargaining power between press publishers and individual journalists and creators.

This imbalance is hugely exacerbated by the fact that the limited exception to U.S. antitrust law for collective bargaining by labor unions, on behalf of employees, has been construed to not extend to freelancers, independent contractors, or self-publishers, even though they make up a growing share of journalists, given that salaried newsroom staff is cut back.

It is therefore essential, in our view, that any new exception to antitrust law to permit collective bargaining by press publishers with news aggregators either:

1. include a provision that expressly permits collective bargaining by creators (including freelancers, independent contractors, self-publishers, and all other actual creators of works for hire) with publishers and news aggregators regarding the division of revenues from any new ancillary or other rights for publishers; or

2. be enacted concurrently with a more general express antitrust exception permitting collective bargaining by freelancers, independent contractors, self-publishers, and all other actual creators of works for hire.

We made similar points as the only representatives of writers, journalists, and other creators selected by the Copyright Office to participate in a “roundtable” held as part of its policy study.

Our comments to the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) were submitted jointly with a coalition of other organizations of creators in response to a request for comments on Making Competition Work: Promoting Competition in Labor Markets:

Freelance creative professionals all share one thing in common: they are workers who provide their labor to bring artistic beauty, ideas, expertise, and insight to us all, and they do this with no employee protections, no benefits, no minimum wages, no ability to collect unemployment benefits, and negligible ability to negotiate their contracts. Most of these workers are grossly underpaid, although they create the very foundation and reason for the existence of the core copyright and creative industries—publishing, film, music, software, newspapers, and magazines…

In today’s marketplace, these workers face myriad challenges, and the Federal Trade Commission and the Department of Justice’s inquiry into the intersection of antitrust and labor law casts much-needed light on these struggles.

Antitrust laws, as well as our members’ lack of collective bargaining rights, directly affect our members’ ability to earn a sustainable living through their creative work. In most creative fields today, industry consolidation and the domination of a handful of online distributors has vested excessive market power in the purchasers, publishers, and distributors of creative works, resulting in a grotesquely imbalanced marketplace that negatively impacts the advance of both commerce and culture to the detriment of creators and consumers alike….

Much has been made of the recent legal protections provided to “gig” workers in today’s economy, but creative freelance workers are the original underpaid gig workers…. Like traditional employees, these workers earn their livings by providing labor to the companies that hire them; they are not on an equal footing to negotiate the terms on which they provide services and licenses. Publishers and distributors generally, and increasingly, give individual creators contracts of adhesion to sign on an essentially take-it-or-leave-it basis, with little or no ability to negotiate better terms. Parity will not be achieved in these labor markets unless and until the individual creators in each field are clearly allowed to negotiate and act collectively with their de facto employers: publishers and distributors.

The labor and antitrust laws have been applied to creative workers as though they are businesses with the ability to negotiate freely and on an even footing with the buyers of their services and creative works – a marketplace fiction with economically lethal consequences. Since many creative professionals work under independent contractor agreements, and are classified as independent contractors rather than employees, they do not have the collective bargaining rights and other common employment benefits and face potential liability under the antitrust laws from acting together, in concert, to say “no” to certain terms, demand better pay, or boycott bad actors.

The members of our organizations desperately need the ability to collectively demand better treatment and terms for their work from those they work for. They need the ability to act together to say “no” to certain terms, demand minimums and better pay, and to boycott bad actors without risking suit for antitrust violations.

This is our coalition’s top legislative priority in the near term. As such, we have drafted suggested legislative changes [that] would give creative professionals the leverage they need to negotiate more fairly in a market dominated by a few large companies and internet platforms for whom the playing field is outrageously and favorably tilted. We respectfully ask that you consider our proposals, and work with us to help craft legislation that will bring more parity to the freelance creative workforce. In short, we seek your help in closing what is now a grotesque value gap between the pittance in remuneration earned by the creators of artistic works, compared with the billions of dollars in revenues and equity value gleaned by those who dominantly market and distribute such works to the public.