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NUJ Digital Media Working Group report
Herman,Holderness,Trench '94/5
THIS IS STILL A DRAFT PAPER presented here for the record. The authors got on with working on specific policies and campaigns rather than getting this formally adopted.

NUJ DIGITAL MEDIA WORKING GROUP

History:
Original: Mike Holderness, Brian Trench
October 1994
First Revisions: Gary Herman, Brian Trench
November 1994
Second Revisions: Gary Herman
November 1995


DIGITAL MEDIA ISSUES

1. Context
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The current and projected technologies which together provide the basis for the so-called information superhighway represent both opportunities and threats for journalists. By precisely the same means that journalists can locate and share information more easily, publishers can resell the work of journalists over and over again.

When the focus of computerisation in the media industry was on production techniques in the 1970s and 1980s, journalists reacted in defensive manner - seeking to protect themselves against the damage to working conditions and hazards to their health. By and large, they did not engage in the debate about types of production systems, much less propose alternatives to the production line systems chosen by their employers. Some of the implications of the publishers' choices for the nature and quality of journalists' work are only now beginning to be appreciated.

Now the application of information and communications technologies in the media industry is focused on distribution techniques. The development of higher-capacity electronic communications networks and more powerful desktop computers have opened up possibilities for delivering a range of information and entertainment services direct to consumers' computers.

The major media corporations have seen the possibilities for adding value to their journalists' work, recycling and repackaging it in many different ways. Journalists and their trade unions need also to be alert to these possibilities, informed about the technologies at issue, and armed to argue a democratic strategy for their application.

Such a strategy has two main planks: it would seek to maximise access to the means of information and communication; it would seek to protect the rights of those whose efforts provide the raw material for the new services, whether these efforts fall under the current definitions of "creative" and "intellectual", or not.

At a time when the European Union is moving towards adopting a strategy for market-led development of the new information infrastructure (following the publication of the Bangemann Report on "Europe and the Information Society"), journalists and their trade unions need to consider what kind of regulation is necessary to prevent the reinforcement, by new means, of the gap between the information-rich and the information-poor.

We note that in its recent action plan, "Launching the Information Society", the European Commission responding to the Bangemann Report explicitly acknowledges that its "own definition of priority issues ... begins with employment and the working environment", while simultaneously noting that "possible responses to social and cultural challenges... make up much less than one third of the Commission's action plan". As with Al Gore's National (and Global) Information Infrastructure proposals, the emphasis is on supporting private sector involvement in introducing the technology, not developing a strategy towards its effects. But the issues are by no means settled. It is still possible to intervene successfully in the decision-making processes and affect final policy and action outcomes.

2 The Technologies
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New means for reselling journalists' work:

* CD-ROM publishing, including image databases
* Online text databases (Profile as a UK example)
* Publishing on computer networks
* Electronic syndication - all major UK daily papers now have news and features "services"
* Blue-sky possibilities

e.g. the Massachusetts Institute of Technology Media Lab games with personalised newspapers; the San Jose Mercury is doing a primitive version of this. As envisaged by its advocates, the electronic newspaper is "formatted" by market research rather than by journalists' judgement.

The inherent characteristics of digital reproduction:

* It is relatively simple and cost-effective to manipulate text, images (still and moving), and soundtrack
* It is possible to produce an indefinite number of copies of a work with no degradataion of quality at an infinitesimal (effectively zero) marginal cost

But also "enabling" technologies:

* Computer conferences - means to collect and share information
* Electronic mail - means to work collaboratively
* Electronic newsletters - low-cost entry into publishing for journalists in specialist areas
* The use of e-mail may create entirely new contact opportunities for journalists

3 The Issues
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At present most information conveyed by these new media is reproduced from print publications: publishers are managing to re-sell the same information in several forms (cf. CDs, DAT in the music biz). Publishers are avoiding paying subsidiary, syndication and repro rights for this. This is the major reason for publishers (IPC, the Guardian) pressing for all
rights contracts.

In the future, it is likely that more members will be commissioned to produce material specifically for electronic publication. What forms of contract should we advise members on?

In the context of electronic publications, it is possible that the possession of particular technical skills will become paramount. Already we are seeing that the ability to use particular software packages is becoming an important component of many journalists' work. Ethically aware training is unlikely to be provided by employers, even if they do offer some form of skills development (see section 6 below). Training also represents an opportunity for recruitment by journalists' unions, and an issue on which the union can engage with employers on a number of levels.

New technologies often also mean increasing the workload and/or expenses of journalists. This is particularly relevant to freelances who may now have to buy expensive hardware and software, use diskettes as well as paper for submitting copy, subscribe to online services, and face alarming increases in their phone bills as a result of filing images and text electronically.

These may affect staff, too, and there are other, less obvious, effects of new technologies. For example, an email address at the end of an article or news item is a direct come-on in a way which the inclusion of the publication's phone or fax number is not. It is also easier for readers to send messages to email addresses than to seek to engage journalists in conversation. This may mean that journalists have increased amounts of mail to deal with as a result of the publication of their email addresses.

All the technologies make plagiarism more likely. Here we share concerns with the publishers. Are modifications of copyright law, even to the Berne Convention, necessary or advisable? How relevant are such formal declarations in the marketplace? The pressures on journalists to get ahead may be such that they are tempted, particularly because it is now also easier, to cheat in order to impress. Editors may be so focused on getting one up on their rivals that they care little, and less, about the methods used to get a story.

Journalism trainers can contribute to making prospective journalists more aware of the need to respect author's rights. But such ethical awareness needs to be very strong to resist all the countervailing pressures of the "real world".

The technologies also make it more likely that newspaper publishers and broadcasting organisations will sell their journalists' material in other markets and time zones even as their own readers/listeners/ viewers are receiving it. The opportunities for direct contributions by staff and, particularly, freelance journalists are reduced in those publications or broadcasters taking the syndicated material online.

The law in this area is a minefield, and few if any people have sufficient expertise to be able to advise us. It may be worth considering formal arrangements to monitor developments. This could be done under the aegis of the IFJ, or by the NUJ. We believe there is a strong argument for appointing a full-time researcher to the NUJ.

Developments in this area we should keep a close eye on:

* The National Writers' Union case against Mead Data Central et al in New York
* We hear that Australian law does not recognise "all rights" assignments and that the contributions of Australian journalists have for this reason been omitted from the new CD-ROM edition of a weekly science magazine.
* The CITED demonstration system (see below)
* The eventual outcome of GATT Uruguay Round discussions on intellectual property rights.
* The European Union discussions on the copyright protection of databases.

But also ...

* Possibilities for journalists to share information and experiences across national, sectoral, commercial, etc boundaries are greatly increased.
* Possibilities for freelances to sell their material, in modified form - of course - to diverse outlets are also increased.
* Possibilities for journalists to assemble information quickly from a wide range of sources could make for a better informed, more research-based journalism, also presents opportunities for freelances to improve employability by developing specialism(s) based, at least in part, on use of electronic information resources.

4 Ownership and control
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Network publishing in particular raises some serious questions about the ownership and control of information.

As information providers, our members may at first sight find attractive developments such as the CITED pilot project

a mechanism for readers to be charged for access to individual articles, and in principle for a proportion of the charge to be passed back to the author/photographer.

As researchers, our word-producing members may find this prohibitively expensive. Imagine a situation where they're paying by the word for background, and publishers are unwilling either properly to fund research (for staff) or to reimburse research expenses (for the increasing proportion of freelances and home
office people).

As citizens, we should be very concerned by a world in which high-quality information is metered. Consider that Murdoch has been wandering round with an open chequebook trying to buy up anything which may put information on the "infobahn". Consider that Murdoch is meeting with Bill Gates of Microsoft, Barry Dillon of the (US) QVC cable service and Hollywood figures. Consider the possibility for manipulation of a world in which (exaggerating for the sake of brevity) the poor get Sky News and an expanded Rothermere teletext service, while the rich pay through the nose for differently-slanted information. In fact, this is only a natural extension of a situation that already exists in much of the world.

We do not believe anyone knows the right answer to this dilemma. We have an opportunity to get involved in the debate about the nature and economics of 21st century media. We should not let this opportunity slip by.

We must, soon, make a tactical choice on our attitude to the questions on rights in (2), informed by our response to the big-picture issues in (3). Do we:

(a) dream up ways of pressing for subsidiary rights payments to be reinstated;
(b) ditto, proper once-off compensation for selling all rights;
(c) roll over and die;
(d) come up with another approach?

Whatever the approach we decide to take (and we believe it will probably require some creative thinking), we believe that it is important for us as journalists and for society at large that there should be universal access to information, and provision for this to be free ("at the point of delivery") through some form of public digital library service.

This is not the same as universal access to information superhighways (although we may wish to consider that), nor does it mean foregoing intellectual property rights. We must distinguish between the right to receive information and the right to reproduce it. We believe that the first is an inalienable human right, while the second is transferrable and governed by law and the market.

The principle at stake here is that authors should be entitled to benefit from any transaction involving their work. This principle binds together copyright and public lending right in printed media. It will need to be reconsidered in the light of new, electronic forms, particularly since reproduction can now be 'virtualised'
that is, it can take place entirely electronically and may involve no permanent or long-lived physical object at all.

Three questions need to be answered:

* How do we define an author and authorship?
* Who pays for reproducing an author's work?
* On what basis are payments made?

5 Moral rights issues
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We believe that moral rights are central to many of the emerging issues and should propose the idea that they are:

Automatic (you don't have to register) Enforceable (mechanisms must be established) Inalienable (they cannot be transferred or denied) Obvious (they must be clearly defined) Universal (they apply equally to all people in all countries).

Photographer members are naturally concerned about digital manipulation. We think we should get down, very very soon, to drafting codes of practice. These might include:

* Minimum prominence for a "health warning" on manipulated images (Most TV stations already label "file (or library) footage" lest viewers think it's contemporary);
* Where pictures are manipulated, a case could be made that the moral rights provisions of the (C) Act compel consultation with the photographer - electronic return of "proof copies" of manipulated images is cheap and instant.

We should consider the possibility of this effort feeding into a joint lobby for an EC "honesty law". Here we can pick up very considerable public support and (re-) build a reputation as guardians of ethical journalism.

This would be really no more than an extension of the integrity provision of the existing UK copyright law, where authors have the moral right to ensure the preservation of the integrity of their work. Under these provisions, a work cannot be significantly altered or revised without the original author's permission. At present, however, it does not apply to all works (for example, periodical journalism is excluded), nor is "integrity" very clearly defined.

Advertisers are now taking notice of "blue-sky" projects like the MIT Media Lab's. The distinction between interactive computer games, film, advertising, and personalised newspapers are meaningless in these people's eyes. Consider:
* Product placement in films is routine, effective for advertisers and accepted;
* Rumoured product-placement in Nintendo games;
* Efforts to develop personalised advertising - the TV that sells you what your buying profile indicates you're likely to want;
* Sponsorship of news "shows" is commonplace in the US and a fight will be required to stop it happening in the UK.
* The ability to insert two dimensional images into motion video - initially for the purposes of customising billboards during sports broadcasts.

It is not paranoid to suggest that "digital manipulation of text" will become an issue. That personalised newspaper which promises to provide just the news you're interested in will produce advertorials... and there will be pressure to blur the distinction between editorial and advertorial.

However, we can see no reason why 'consumers' should not be allowed to select and build their own publications by means, for example, of registering preferences with a software robot. Nor do we see any practical way in which this can be prevented. And if consumers can do it, so can commercial organizations. The possibility of producing "custom publications" means that third parties could always sell the publications on.

In any case, interactive online multimedia publications will increasingly be customised in this way. The technological foundation of multimedia demands new approaches to the protection of moral rights.

There is an analogy with home-taping and another with online databases. The proposal in the EU draft directive on database protection for a sui generis form of copyright to apply only to databases might provide a model for protection of custom publications. The home-taping precedent provides three other possible solutions:

(a) prohibit all copying/online selection of items;
(b) allow limited copying/online selection of items for non-commercial uses;
(c) allow all copying/online selection of items under agreed terms.

It's worth noting that while home-taping could never be prevented by technological means (the mythical spoiler signal), the same probably does not apply to the reproduction of material in digital form.

Certainly, we ought to develop a code of practice to cover custom publication and the whole issue of integrity. Thinking about it, it might become known as a "reality law" or "anti-virtual law" rather than "honesty"!

In practice, we may wish to support the notion that original works are somehow encoded so that they cannot be manipulated, cropped, or cut without permission. We must also consider how to enforce collection of payment for items that are manipulated with permission. Option (c) above suggests three possibilities:

(a) a pool scheme
(b) a licence scheme
(c) a levy scheme.

6 Training
---------
The training issues arising from these developments need to be handled at two levels:

1. The union should ensure that recognised pre-entry courses include specific elements on the applications of ICTs in the media industry, ensuring that those entering the trade are attuned to the future possibilities, equipped to handle current technologies, and alert to the ethical and legal issues they present.

2. The union should encourage the provision by recognised institutions - and, where appropriate provide itself, harnessing expertise inside and outside the union - of courses in the newer technologies for those already established in journalism - for writers in electronic mail, online databases, CD ROM reference works, electronic archiving, etc; for photographers in digital editing, electronic filing; for subs in photo editing.

Employers cannot be relied on to provide the kind of ethically aware training which is required.

Photographers and agencies are in crisis _now_ as papers try to cut electronic filing fees. Publishers are trying to push the capital investment and "revenue" expenditure onto our members. How do we react to this?

7 Practical responses
-------------------
Many of these issues are not of immediate concern, but the union must provide leadership, because the changes that are happening will be more significant by far than the introduction of direct entry. To this end, the union must support promotional and research activities around these issues now.

Publishers are extracting already much more value from journalists' work. Even allowing for the political difficulties in prosecuting claims for house agreements in Britain, a new type of productivity bargaining is required which extracts a price from publishers for these resale possibilities. This is already union policy (ADM 1991) but never(?) implemented - is it unworkable?

Recognising that information providers to online databases do not or cannot systematically strip out all material provided by freelances on (assumed or stated) one-use-only basis, journalists' unions should seek preferential rates for freelances (or maybe for all members) for usage of such services. This is already union policy (ADM 1991).

Advice should be available for freelances on: What to put on invoices and delivery notes asserting rights; pix stickers / copy marking / coded electronic "stamp" on scans; What to do if publisher asks for rights (fees guide?).

The union should make a thorough and determined effort to apply information and communications technologies effectively to its own work, seeking to develop the existing union network beyond its freelance / techie niche to become the preferred means by which Head Office communicates with branches and chapels and these with each other.

This would be an important signal to the membership as a whole that the union is not merely reacting defensively to the technologies and that it recognises their potential to be applied in the democratic interest.

Mike Holderness
Brian Trench
Gary Herman



Tuesday, December 03 2002

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