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Fact Check

The day after the boycott was announced, Pierre Marcoux, Transcontinental’s vice president of business solutions and book publishing, made a number of comments to the press, including his assertion that freelancers have misunderstood his company’s new Author Master Agreement. Here, we offer a number of these statements followed by our responses.

Marcoux said that the company was surprised by the press release and the suggestion of a boycott. “We received this communication [the press release] the same as everybody else and we were surprised that 12 groups had joined with the Canadian Writers Group and PWAC, especially since we’ve never talked to them.”

Marcoux should not have been surprised to learn that fourteen groups – not just PWAC and CWG – had serious concerns about his company’s new Author Master Agreement. The letter the coalition sent to Jacqueline Howe, Transcontinental Media’s group publisher and vice president for English Canada, back in June that lead to a meeting between Derek Finkle (CWG), a representative from PWAC, Iain Mackinnon (coalition counsel), Howe, and Marcoux on July 16, was signed by ten groups, in addition to CWG and PWAC. The representatives from CWG and PWAC both made it clear during the meeting that they were there representing all of these groups, which accounted altogether for thousands of writers. They also mentioned that Michael Levine of Westwood Creative Artists had planned to be at the meeting, but had to leave town on short notice that day. Further, when Finkle spoke with Pierre Marcoux on September 1, and Marcoux informed him that Transcontinental Media was now unwilling to make any changes to its contract, Finkle told him that all of the groups represented at the meeting would continue to oppose the contract – only now we would be doing so “in a very public fashion.” Marcoux was silent for a few moments before he said, “Okay.”

Marcoux said when he met with the Canadian Writers Group and  PWAC in July, it was Transcontinental’s goal only to explain the terms of the contract. “Our intention has never been to negotiate the contract,” said Marcoux, “but to clarify. We think it is a good, coherent and fair contract. We don’t see it as a rights grab. It clarifies the rights we now have with writers and clarifies copyright.”

Marcoux’s efforts to clarify the contract were mitigated by the fact that the coalition representatives were the ones who showed up at the meeting with a media lawyer. At one point during the meeting, when discussing why Transcontinental publications needed the non-exclusive copyright outlined in clause 1.2, Jacqueline Howe said it would allow Transcontinental editors to go on television shows to discuss features in her magazines (the example she cited was a story about new barbecues). The coalition’s lawyer, Iain MacKinnon, said that Transcontinental didn’t need clause 1.2 for such an activity, as this would be covered under fair usage. Marcoux also conceded that Transcontinental was not likely to get into the movie or television businesses, to which MacKinnon replied, “Then why do you need to ask for all of these rights?” Marcoux is now admitting that this part of the contract is a “provision” intended to “ensure that any such arrangement [radio, television etc] was ‘manageable’.”

Marcoux said that after Transcontinental exercised its negotiated first rights, the author retains copyright, although it is no longer exclusive.”What we have is a subsequent right to use the work, but only in association with the brand that first published it. We’ve even defined what that includes – web, mobile, radio or TV shows.”

Marcoux did point out during the meeting that the Author Master Agreement only pertains to the Brand in question, not the Publisher (Transcontinental). First, we would point out that the contentious clause 1.2 refers to the Publisher, not the Brand (“…as well as to authorize others to do so on behalf of or in association with the Publisher.” Second, as the coalition explained to Marcoux and Howe, it doesn’t really matter to the writer whether it’s Transcontinental or one of its brands taking on non-exclusive copyright to make TV shows etc. It’s a distinction without a difference, really.

Marcoux said that writers who have concerns about the contract should talk to the editor or publisher with whom they normally deal. He said that any writer who did not want to sign the master agreement could continue to sign contracts with Transcon on an article-by-article basis (though he pointed out that the intention of the master agreement was to avoid unnecessary paperwork for both company and freelancer.)

The coalition has heard from many writers who’ve spoken to editors at Transcontinental about this contract. All of these writers have been told that if they don’t sign the Master Author Agreement, they won’t get paid. In fact, we’ve seen an email from an editor at Transcontinental to a writer that says editors at Transcontinental were told to use the new contract as of July 16. July 16 just happens to be the day of the meeting to discuss the contract at Transcontinental. Coincidence? The same editor told the writer that she can’t assign anything to the writer without a signed Master Agreement because that would put the writer at risk for not getting paid. So we’re not sure the editors working under Marcoux have been told about this flexibility regarding the contract. It sounds like it’s actually the opposite.

“We looked at a lot of other contracts [in the business] when we were drawing this up,” said Marcoux. “And while this may not be the best, it is certainly not the worst.”

Howe mentioned during the July meeting that it took her and her colleagues a year to put this new Author Master Agreement together. When asked if she consulted any writers or writers groups during this process, or if she’d consulted any editors at Transcontinental regarding the new contract, she said no. She then went on to say that she’d consulted a number of contracts at other companies during the process. She happened to mention a couple of large American publishing outfits that pay three to four times what her publications usually offer. The coalition suggested that she was comparing apples and oranges. There are a few other troubling contracts at use in Canada, though no one we know of licenses copyright permanently on a non-exclusive basis. We’re sure that Transcontinental’s valued contributors would have hoped Marcoux had aimed a little higher than “certainly not the worst” when formulating a progressive and fair new freelance agreement.

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