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Creativity today is a commodity, and a precious one at that. Like pork bellies, wheat, diamonds, cotton and oil, creativity is bought and sold in bulk by multinational corporations. It is packed into collections on CD-ROMs that are worth their weight in gold or sold by the word over the Internet. But, unlike conventional commodities, creativity isn’t pumped from the ground, plucked from a bush, or carved from a carcass. Rather, it springs from the brains of human beings — from the pens and keyboards of writers — who want a share of the profits from this perpetual publication of their creative effort. And that’s the rub. A great deal of the creative work that you receive is produced by free-lance writers, this writer included. Free-lancers sell their articles to publishers, such as newspapers and magazines, for inclusion in hard copy. In the parlance of copyright law, these are “collective works.” The going rate for free-lance articles ranges from nothing more than a byline to an upscale $2 per word, depending on the publication and the reputation of the writer. Of course, there are also writers, such as reporters, who work on salary as employees of publishers. Whether free-lancers are fairly compensated has long been the subject of debate. The debate got more intense when technology came along to allow publishers to republish the free-lancers’ works in hugely profitable digital databases and to sell this right to other corporations. For example, the article that you are reading will be incorporated in at least two digital databases available online. One is maintained by American Lawyer Media Inc. for its family of publications. The other is the Nexis service operated by the international media company Reed Elsevier PLC. Several years ago, free-lance writer Jonathan Tasini and several other writers filed a lawsuit challenging the publishers’ right to republish or resell digital versions of their articles unless the publisher’s contract with the writer specifically allowed this. The publishers countered by saying that special contractual provisions were unnecessary. They argued that they had a so-called statutory license under � 201(c) of the copyright law to include the articles in databases. This section provides: “In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.” 17 U.S.C. � 201(c). The case reached the U.S. Supreme Court last year. The Court ruled in the writers’ favor in New York Times v. Tasini, 533 U.S. 483, holding that the statutory license did not give publishers the authority to include contributions from freelance writers in digital databases. Writing for the majority, Justice Ruth Bader Ginsburg noted that the publisher’s statutory license is limited in scope in order to protect the value of the author’s copyright: “If there is demand for a freelance article standing alone or in a new collection, the Copyright Act allows the freelancer to benefit from that demand; after authorizing initial publication, the freelancer may also sell the article to others.” Ginsburg compared the inclusion of an article in an electronic database to republication of the article in hard copy, alone and separate from the collective work. Such republication, she concluded, did not fall within the statutory license. But Tasiniwas a narrow victory for freelancers. Digital databases are lucrative, and publishers want the digital rights to articles. Therefore, they simply amended their contracts with free-lancers to give publishers the right to include future free-lance contributions in digital databases. Free-lance writers for their part have little power individually to take on the big publishers and get better compensation. Of course, in theory, they could organize and gain power in contract negotiations by bargaining collectively. An organization such as the National Writers Union — which, incidentally, Jonathan Tasini heads — might attract a large number of writers if it could bargain collectively for writers. It might thus match the economic power of the publishers and secure a standard contract more favorable to the writers. But unfortunately for the writers, there is a Catch-22 in antitrust law. An attempt by two or more free-lance writers to band together to bargain is considered anti-competitive and illegal per se. Conventional labor unions can do this only because they enjoy statutory exemption from the antitrust laws. But, the exemption doesn’t apply to independent contractors, such as free-lance writers. Thus, while the antitrust laws have done little to prevent mergers and concentration of the print and electronic media in recent years, they have been highly effective at keeping the bargaining power of free-lance writers fragmented. To solve this problem, Rep. John Conyers, D-Mich. has introduced the Freelance Writers and Artists Protection Act of 2002, H.R. 4643. It would allow free-lance writers to organize and bargain collectively with publishers in the same way that unions bargain with employers without violating the antitrust laws. The bill receives support from the National Writers Union and its parent, the United Auto Workers Union. In an apparently independent effort, playwrights too are asking for the right to bargain collectively with bills of their own, S. 2082 and H.R. 3543. Not so many years ago, Internet visionaries used the word cyberspace to connote a new world where the rules of life, law, and economics would be different and where the ugly unpleasantries of the real world wouldn’t exist. In the real world, people might work long hours in dangerous factories with tall smokestacks that polluted the air, but that wouldn’t be true in cyberspace. In the real world, big corporations might exploit natural and human resources, but not in cyberspace. In the real world, labor unions existed to counter the economic power of the corporate employer, but unions wouldn’t be needed in cyberspace. The free-lance writer would be the model citizen in this quaint view of cyberspace. His product is one of the mind. It comes from a factory that is environmentally friendly and can be shipped around the world for the cost of a few electrons. It is as easy to produce a million copies of an article in cyberspace as it is to make one. Today, though, the writer has sadly discovered that the real-world laws of economics, antitrust and labor relations apply with equal force to him and to the supposedly bold new world of cyberspace. Indeed, the writer at his toil is no different from the assembly line worker, the cook, or the coal miner. But for now at least, his plight seems closer to that of the boxer in the poetry of singer/songwriter Paul Simon: I am just a poor boy, Though my story’s seldom told, I have squandered my resistance For a pocketful of mumbles Such are promises. James H. Johnston, a Washington, D.C., lawyer, is a frequent contributor toLegal Times . He may be reached at [email protected]

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