Fairfax – analysis

Update: Fairfax Contract

Following pressure from freelance journalists, the MEAA lodged an application with the ACCC seeking an exemption from the competition provisions of the Trade Practices Act 1974, so that the MEAA can engage in collective negotiations with four named publishers on behalf of participating members, and authorisation was granted in May 2010 for the MEAA to collectively represent its freelance journalist members in negotiations with Fairfax Media Limited, ACP Magazines Ltd, News Limited and Pacific Magazines.

At issue are minimum rates of pay, freedom to contract with other media organisations, and other contractual terms like copyright and moral rights.

However, participation in collective negotiations is voluntary for both publishers and for MEAA members; and freelancers are not authorised to make a collective decision by freelance journalists “to boycott a publisher if it refused to participate in collective negotiations or for other reasons including a failure to reach a collective agreement.”

So if freelancers are “not authorised” to collectively boycott a publisher, I wonder what negotiating power they have? (Oh that would be … NONE!)


Fairfax Media Contract Analysis

Founded in 1841, Fairfax is one of Australia’s largest media companies (especially since its 2006  merge with Rural Press) and owns over 40 newspapers, various magazines, radio stations and websites nationally.  In 2008, Fairfax retrenched around 15 percent of their editorial staff – over 500 people – and the MEAA set up the Fair Go Fairfax Campaign. http://www.fairgofairfax.org.au/

Meanwhile freelance staff – clearly now more important than ever – are also in managements’ sights.

Fairfax Media have issued a few variations of their writer’s contract (titled Contributor’s Contract) over the years, and freelancers have not been happy with the standard terms for many years.

In fact, one long-term Fairfax contributor told a recent gathering of freelance journalists  that in 1998 she had called the Australian Media Entertainment and Arts Alliance after receiving a writer’s contract from Fairfax and the MEAA told her, “We’re advising freelancers not to sign.” “So what do I do?” asked the freelancer. She was told to put the contract in a drawer.

In 2004, the same freelancer (who had merrily kept working for the company) received another copy of the same writer’s contract from Fairfax, called the MEAA and was told, once again, to put it in a drawer.

By 2007 though, Fairfax changed the terms of their contributor’s contract and insisted that contributors who had not signed the new contract (or any contract) accept the new – far more onerous – terms.

The 2007 writer’s contract included the following bad clauses:

1.3 Subject to clauses 1.4 and 1.5, You grant to Fairfax a worldwide, irrevocable, exclusive licence to reproduce and deal with Fairfax Work by all means whatsoever.

What the? Licensing perpetual copyright, anyplace anytime is really taking the mickey. In an earlier clause, the contract asserts that the contributor owns copyright – but really, what’s the point if Fairfax can then use it however they want, whenever they like?
There should be a time limit on this license – and a region restriction. The clause should also include a means for paying contributors a reprint fee (stated as a percentage of the original fee paid) or syndication fee (stated as a percentage of the fee for which the work is licenced) when the work is re-used in any publication other than the one for which it was originally commissioned. This is common practice internationally.

1.4 Subject to clause 1.5, Fairfax agrees that You may license Fairfax Work (on a non-exclusive basis) for publication by a Third Party only if:

(a) the Fairfax Work has already been published in at least one Fairfax publication; or
(b) the Fairfax Work has been rejected by Fairfax.

Now the problem with this clause is that, once again, there is no time limit. Fairfax can take a journalists’ contribution and sit on it forever, and the writer cannot re-use it and has no redress. Obviously there needs to be an expiry of the Fairfax license based on the date of submission, not the date of publication.

1.5 You may only license Fairfax Work in accordance with clause 1.4 to a Third Party publication published substantially:

(a) outside Australia and New Zealand; or
(b) within Australia and New Zealand, but only if the publication is NOT published by any of the following Third Parties or their Related Bodies Corporate:
(i) News Corporation Limited;
(ii) Telstra Corporation Limited;
(iii) PBL Media Limited;
(iv) Publishing & Broadcasting Limited;
(v) ninemsn Pty Ltd;
(vi) Seven Network Limited;
(vii) Seven Media Group Pty Limited;
(viii) Yahoo!7 Pty Ltd;
(ix) West Australian Newspapers Limited;
(x) Australian Consolidated Press Limited;
(xi) APN News & Media Limited; or
(xii) Time Inc,
unless otherwise approved by Fairfax in writing (such approval not to be unreasonably withheld).

Clause 1.5 puts rather strong restraints on re-use of material within the Australian market which is unnecessary.

2.1 Unless You are an Occasional Contributor, in which case You will not in any way be restrained from providing Other Work to a Third Party, You must not provide any Other Work for publication in any publication published by any of the following entities or their Related Bodies Corporate:
(a) News Corporation Limited;
(b) Telstra Corporation Limited;
(c) PBL Media Limited;
(d) Publishing & Broadcasting Limited;
(e) ninemsn Pty Ltd;
(e) Seven Network Limited;
(f) Seven Media Group Pty Limited;
(g) Yahoo!7 Pty Ltd; or
(h) West Australian Newspapers Limited;
(i) Australian Consolidated Press Limited;
(j) APN News & Media Limited; or
(k) Time Inc,
unless otherwise approved by Fairfax in writing (such approval will not be unreasonably withheld).

Clause 2.1 is really offensive to most freelancers. Apart from ‘occasional contributors,’ who provide  3 works or less in 6 months, this clause restrains Contributors from working for a majority of the other media producers including most major magazine publishers in the Australian market, unless they seek written permission.

Without Fairfax providing any guarantee of ongoing employment, or sick leave or superannuation, the company is restraining contributors’ other work in a similar way that may be expected of an employee.

It’s entirely unreasonable to require their freelance writers – who are paid as independent contractors – to seek permission from Fairfax any time that they may be considering submission of work to another publisher. Does Fairfax also require its cleaning staff to promise not to provide cleaning services to rival companies? Do they insist that Microsoft not supply software to other publishers?

This reeks of ‘unconscionable conduct’ as defined by the ACCC:  http://www.accc.gov.au/content/index.phtml?itemId=303748 where a powerful business negotiating with a small business imposes terms that are unfair and unreasonable.

A particular problem with this clause is the breadth of the other publishers that are covered in the restraining clause. In the small Australian media market, this means that contributors attempting to support themselves by freelance must, by necessity, seek written permission from Fairfax to carry on normal business.

6.1 If the Contributor is an individual, to the fullest extent permitted by law, You waive Your moral rights (as set out in the Copyright Act 1968 (Cwth)) in relation to all Fairfax Work and give Fairfax Your consent to do (or omit to do) anything that might otherwise infringe Your moral rights, such that Fairfax may reproduce and deal with all Fairfax Work free from any impediment.

Clause 6 requires contributors to waive their moral rights. This contravenes most international copyright recommendations. Fairfax could make any changes it wanted to a journalists’ work– and publish it under that journalists’ byline. Alternatively it could publish it anywhere else that it chose, and use any byline it chose!

Many other publishers ask contributors to agree to their work undergo normal sub-editing processes; this is a far better way of negotiating with contributors about the use of their material.

There has been much discussion of the Fairfax contract among freelance journalists, both through the formal channels of the MEAA and through numerous informal freelance networks that exist around Australia.

Fairfax is now becoming a far less popular publisher for many good freelance journalists with great stories to sell, because the terms of the Fairfax contract are much less favourable than those of rival publishers.

Clearly this contract has been devised by someone who has little understanding of the way that freelance journalists work.

Good journalists might put up with these conditions for a while but if other publishers offer more desirable conditions, Fairfax has given their freelance journalists no reason to stay. There will be new and inexperienced journalists who will accept these terms – and the quality of content will decline as a result.

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