Letter sent on behalf of the CFU and Unifor Media Council to Ken Hunt (Hunt is no longer with SJC despite his name still being posted and so correspondence was sent instead to Maryam Sanati).                                                                      

Wednesday, March 15, 2023

Dear Ken Hunt,

The Canadian Freelance Union and Unifor Media Council are deeply concerned about new clauses that St. Joseph Communications (SJC) properties are using in their updated (fall 2022) contract to engage freelance contributors. The contract contains language that gives far-reaching rights to SJC that many contributors cannot morally or, in some cases, legally agree to. 

Based on conversations with dozens of SJC contributors throughout the fall and during the first-ever national freelance summit in February, 2023, these new clauses have made many people hesitant to work with SJC for fear they stand to lose control over their work. 

While SJC has, of course, the right to publish material that it contracts to be produced for its properties, we find the sections that relate to “ancillary rights” to be an unfair overreach of your company’s power.

To start, the addition of this clause takes rights away from freelance contributors to use their own works: In addition to the Publishing Rights, Contributor also grants to SJC and each of its affiliated companies the exclusive right and license to control, administer, license and/or sell the Ancillary Rights, provided that such use continues to be in association with Contributor’s name.

The contributor must agree to allow SJC and its affiliates, licenses, successors and assigns to be their “exclusive” representative when engaging with potential buyers, licensors or other interested parties in the work. Freelancers are prohibited from discussing any ancillary rights with anyone, lest we diminish SJC’s ability to explore and conclude the best possible arrangements for the Work(s).

The contract prices SJC’s share of any profits from ancillary uses of the work or works at 20%. It insists that if a freelancer were to be paid this money directly, they have the responsibility to send this money to SJC promptly, with HST applied.

The list of ancillary rights is stunning: audio and podcast rights, commercial tie-in rights, film and television rights, book and longform journalism rights, graphic novel rights, stage rights and video game rights.

And, To the maximum extent permissible by law, Contributor hereby waives all of the Contributor’s moral rights or “droit moral” within the meaning of the Copyright Act (Canada) associated with the Work(s), the Rights and/or similar rights.

We note that the contract used in 2021 said that SJC would have non-exclusive rights to sub-license works, not exclusive rights, as per the new language.

We are opposed to the new contract language and call for you to remove it from the contract. Here are a few reasons why:

1.   The new contract asks contributors to turn over their rights (and thereby relinquish control) to their work so it can be monetized however SJC sees fit, or else not be published. If a work is based on the personal story of the contributor, experiencing a sexual assault for example, the contract assigns rights of the story itself to SJC, even though the story is extremely personal to the contributor. By sharing their story with a SJC magazine, they risk losing control of it. If the contributor wants to explore their experiences detailed in the work in a self-produced podcast, this contract says that they must return 20% of the revenue made by the podcast to SJC, even if SJC had nothing, at all, to do with creating the podcast.
   
2.   If a contributor has created something that, several months later, they decide they do not want to take any further for whatever reason, and SJC sells the rights of the work to a movie production studio, this contract does not allow a contributor to refuse the use of their work.
   
   
3.   If a contributor has an agent, this contract renders the agent’s job impossible, as SJC becomes the sole agent of the work in question. This places the contributor into a difficult legal position if they have a contract with an agent that says the agent is their sole representative in negotiations.
   
   
4.   If a contributor has written something that is rooted in many years of research for works that have appeared elsewhere, it would be extremely difficult to untangle where previous research stops and work undertaken to produce a work for SJC starts. If that contributor were then to publish a book about that same issue that might rely on work that was done to produce a work for SJC, SJC could argue that they are entitled to be the sole agent of negotiations for such a book project.
   
   
5.   Perhaps what is most concerning is that the new contract places contributors into an impossible situation with sources, who at no point expressly agree to their story being used in ancillary productions. Contributors are rarely the centre of their own stories. There are no provisions for a contributor to refuse a project that might fit under SJC’s defined ancillary rights on behalf of the people whose experiences form the foundation of the work, the sources. There is no way for a source to object to their story, as it appeared in a SJC property, to be turned into a video game, for example.

As there is nothing about participating in an interview that implicitly assumes consent to having their stories used for ancillary purposes, this creates a massive disincentive for anyone to agree to be interviewed for a work that is published in a SJC publication. It also puts the contributor into the terrible situation of saying to a source that they cannot protect them from a publisher who wants to turn their story into a movie or whatever.

Freelancers in Canada make stunningly little money. It is not hard to imagine that a contributor who has spent a year researching something might want to use the information that they have gathered over the course of producing something for SJC to produce something else. Book advances, magazine features, articles – nothing pays enough and freelancers are stuck in an endless hustle to try and make enough money to live. 

By taking away a contributor’s ability to use their research for other works without SJC being involved in the negotiations and handling of the work, this contract further turns the screws on freelance contributors in Canada. Having access to non-exclusive rights to monetize future works was already dubious but now, insisting on exclusive rights is unacceptable. We note that, “Equality and respect for all is one of our founding values and core beliefs at SJC” and hope that you can understand our concerns related to this new contract.

On behalf of the Canadian Freelance Union, representing hundreds of freelance communications workers in Canada, and Unifor’s Media Council, representing 10,000 unionized media workers in Canada, we urge you to eliminate the clauses related to ancillary rights immediately.

Respectfully,

Nora Loreto

President, Canadian Freelance Union

Julie Kotsis

Chairperson, Unifor Media Council 

CC Lana Payne, Unifor President
      Randy Kitt, Director, Media Sector-Unifor
      Diane Slater, Vice President, Human Resources SJC

      Editors-in-chief/Publishers, SJC properties

On March 2, the CFU presented a workshop called: Know Your Rights to student journalists at Concordia University's newspaper The Link. You can find the presentation here.

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