Book Review: Copyright, Contracts, Creators: New Media, New Rules.

Giuseppina D’Agostino.  Edward Elgar, 2010.  ($129, hardcover, ISBN: 978-1-84720-106-5, 352 pages).

In Copyright, Contracts, Creators: New Media, New Rules, author Giuseppina D’Agostino presents an exhaustive and thoroughly researched and documented treatment of copyright protection for independent authors, or freelancers.  She narrowly defines freelancers as those who write for mainstream magazines and newspapers.  This book however, has practical applicability to a very limited U.S. audience.  While there is some analysis of U.S. law, particularly Tasini v. New York Times Co (972 F. Supp 804), the emphasis is on copyright protection in Canada and the U.K.  The author also proposes methods of achieving fair international copyright protection for freelancers.  As such, this niche publication would appeal mostly to U.S. copyright lawyers with an international practice or with a strong interest in copyright legislation, Canadian and U.K. copyright attorneys, and authors or other persons with a personal interest in this aspect of copyright.

As the author explains, the book “evaluates the adequacy of copyright law to address the exploitation of freelance authors’ works in the digital era.”  She posits that as publishers have become global and technologically sophisticated, “they exploit freelancers’ works not only in print form but also digitally, often by making them available through their own web sites or by selling them to third-party databases.”  Freelancers often give no consent nor obtain payment for these additional uses of their work.  They are becoming increasingly more vulnerable as new digital and other currently unknown technologies are developed, providing additional means of dissemination for their work that they could not have anticipated.  Publishers expect to own the copyright in freelancers’ works outright; freelancers want compensation.  The author concludes that copyright law inadequately addresses this problem and she offers solutions to “balance the interests of freelancers, publishers and the user communities.”

Chapter 1 introduces the topic and gives background information.  Chapter 2 discusses the current imbalance of power between freelancers’ and publishers in the digital milieu, with publishers holding the upper hand.  Chapter 3 analyzes the history of copyright, concluding that it emerged to protect publishers, not authors.  Chapter 4 addresses the fight over copyright in U.K. courts, stating that there is only a negligible amount of legal history dealing with contracts between authors and publishers.  Chapters 5 to 8 “examine the legislative and judicial copyright treatment from national regional and international perspectives,” with Chapter 7 containing the Tasini analysis.  Chapter 9 explores ways in which the publisher-freelancer copyright protection inequity could be resolved in U.K. courts.  Chapters 10 discusses the two predominant justifications of copyright law: natural law and economic theory.  In Chapter 11 the author proposes legislative and judicial solutions and explores other methods of enhancing the fairness of copyright law to freelancers.  Chapter 12 summarizes and concludes the book.

The author’s own research “confirms that a sizeable body of (mainly American) literature exists dealing with digital technologies and freelancers’ digital uses.”  Her book fills a gap in discussing Canadian, European, and U.K. law, but U.S. attorneys needing practical guidance on domestic law would better be served by availing themselves of U.S. sources.

D’Agostino is Associate Professor at Osgood Hall Law School, York University, Canada and Founding Director of IP Osgoode, Osgoode’s Intellectual Property Law and Technology Program (www.iposgoode.ca).

Donna M. Fisher is a solo law librarian at Senniger Powers LLP, an intellectual property firm in St. Louis MO.