VOICES
Our Disappeared Stories
Everyone loses in the feud over electronic rights
The call came about a year ago from an economics graduate student in California who had heard about some op-eds I'd written for The Boston Globe about the viability of a proposed new convention center for Boston. She had searched on-line through the Globe's archives and other sites, but had found none of my stories. The Globe's Web site, she said, didn't even cite my by-line, let alone my stories. Had I really written them?
Indeed I had. But by the time she called, those pieces were among about three dozen Globe articles I'd written over the past twenty years that were no longer accessible on-line. Like many publications worried about copyright issues, the Globe was requiring free-lancers to sign license agreements granting the paper full electronic rights to their work — an agreement I had refused to sign because of one particularly onerous provision.
In June 2001 the U.S. Supreme Court ruled in Tasini v. The New York Times that publications cannot reprint their free-lancers' work in electronic form without their permission. Since I had not signed by the Globe's July 2000 deadline to grant such permission, the paper deleted stories by me and other nonsigners from its electronic archives. My work had disappeared down the cyber memory hole.
I had no problem with the Globe's effort to secure electronic rights for future work. What bothered me was this provision: "In addition, for no additional fee paid by The Globe, I grant to The Globe a non-exclusive, fully-paid up, worldwide license to use all of the Works that The Globe has previously accepted from me . . . ."
In other words, for zero additional compensation, the Globe wanted rights to anything I'd ever written for it. In fact, I have never made a nickel from a secondary sale of a Globe piece, though I know there is potential gold in them thar electronic archive hills. But I found this retroactivity provision excessive.
Fine. I could live without the Globe's meager pay, though I missed the platform it provided. But my decision not to sign triggered a clash with a Madisonian principle I hold dear, namely, that the full flow of information through a free press is essential to an informed citizenry.
To resolve this conflict, I sought to settle my retroactivity issue with the Globe. Deletion of stories from the electronic public record, I wrote in a July 20, 2001, e-mail, is "not good for me, for the Globe (which gets no credit for publishing the piece), or for the public interest." My overtures were rejected. Citing ongoing litigation in state court by free-lancers challenging its license agreement, Globe management refused all comment, including information about how many pieces it had deleted or how many free-lancers had signed its agreement.
The New York Times, which owns the Globe, was more forthcoming. The Times, which requires free-lancers to sign a similar contract, has deleted nearly 100,000 pieces by nonsigners, said the assistant general counsel, George Freeman. "As an inevitable result" of the Tasini case, he said, "the integrity of the public record has been broken, and we think that's unfortunate." He added that about 20,000 deleted stories were restored after reluctant free-lancers signed the Times agreement.
Unlike the Globe and other papers, the Times wanted to maintain at least some of the public record. Freeman said the Times sought to keep basic identifying information — byline, date, headline, etc. — of stories by non-signers. "We consciously discussed the matter and decided that the articles should not totally disappear from cyberspace," Freeman said. "It is not a good substitute for a complete record, but it's better than nothing."
However, the only way such citations can be found now is by searching the LexisNexis Information Bank Abstract Library, which despite its name, contains just New York Times articles. The information is not available through the more accessible New York Times Library.
Copyright is in no way violated by the mere listing of identifying information. But the Globe and other papers are not offering even the minimal public service of acknowledging the existence of stories by nonsigners.
For whatever reason — cost, institutional laziness, and overlawyering come to mind — these publications have chosen to eliminate reference to probably hundreds of thousands of stories. "It is sad to delete the fact of publication," said the former Times columnist Anthony Lewis, who teaches courses about the Constitution and the press at Columbia. Such listing, he said, would help publications meet their "public responsibility."
The burden of that responsibility thus shifts to stubborn writers like me. We can restore our stories to the full public record, but only by swallowing personal principle and accepting contract provisions we find offensive.
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