Notebook: Word Workers

Feb 14, 2023

HarperCollins workers, on strike since November 10, the morning of the day their union reached a tentative agreement with management

The pandemic saw more people working from home and walking away from 9-to-5 desk jobs in favor of a flexible schedule, swelling the pool of freelancers where writers, editors, translators, and other word-laborers have long swum. (Pen = lance!) This shift—whose breadth and durability remains unknown—has been accompanied by a resurgence of unions, an effort to curtail the power of large, consolidated corporations to dictate working conditions, and concerns for the fate of “gig workers” on whom the app economy has found it can rely for flexible, benefit-free labor, throwing the poet and the Uber driver on the same side of the picket line (of course there probably are poets who are Uber drivers) and helping to propel some unexpected victories for the formerly powerless scribe.

One small triumph that observers were celebrating as 2022 drew to a close was the success—so far—of the brand-new Copyright Claims Board. The Board began operations last summer as a consequence of 2020’s CASE Act (Jane Friedman had a useful description), assembled to provide, through “a government-sponsored arbitration process … a voluntary, lower-cost alternative to district court litigation for [copyright] infringement claims of $30,000 or less,” as Jacqueline Charlesworth, former general counsel for the US Copyright Office who oversaw the study that led to the creation of the board, explained to Bloomberg Law. Charlesworth noted that it was a success that pursuants were bringing reasonable claims and that accused violators were engaging with the system rather than “opting out” and risking a referral to federal court.

Over in Congress, Senators Thom Tillis and Patrick Leahy have been pursuing a more aggressive course on behalf of copyright holders, introducing the bipartisan SMART Copyright Act to combat online piracy. The Washington Post’s Ron Charles explained in his newsletter that “online theft is estimated to cost authors hundreds of millions of dollars per year” and the existing “notice-and-takedown system” requires “constant internet surveillance.” For a glimpse at how piracy affects authors, one need look no further than the sprawling Amazon Marketplace, where authors frequently find, and argue that Amazon fails to police, open rip-offs. And then there are the murky realms of fan fiction and self-publishing—where in a time of TikTok there is more and more money to be made—and complex questions of ownership can swirl around such questions as whether a shared “trope,” like hot werewolf sex, can be considered intellectual property. (The FBI last fall closed down the Z-library “shadow library” that was widely promoted on TikTok as a source for pirated books; the Internet Archive, which provides electronic copies of books outside the system of paid library licensing, remains locked in a lawsuit with four major publishers.) The Congressional SMART act would “authorize the Librarian of Congress to conduct a public discussion … to establish industry-wide standards to combat online theft” and “establish new financial liabilities for online platforms.” The measure is opposed by the American Library Association and the Electronic Frontier Foundation and supported by the Authors Guild and Association of American Publishers. (Relatedly, a few years ago the New York Public Library announced a program with the Copyright Office to make copyright filings searchable.)

So, some progress for the creative person without a record company or a movie studio to defend their intellectual property rights! There are also rumblings of lawsuits to protect intellectual property being hoovered up by large-language-model artificial intelligence systems like ChatGPT and DALL-E. I’m offering to any takers a business idea of my own: start an electronic marketplace that would allow people for small sums to pay fees for creative use in copyrighted work, giving it an electronic stamp marking the use as by-permission. Perhaps such little fees could someday pile up enough to compensate for the unchecked electronic diffusion of creative work that our times have wrought.

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A second apparent triumph for the small-shop word-worker was yanked away last month when New York Governor Kathy Hochul vetoed New York’s 2022 “Freelance Isn’t Free” law, pioneering legislation that was already on the books in New York City and is being pursued in LA (another hotbed of freelancing) to ensure freelancers are paid for their work. The law “simply requires a written contract and payment within 30 days of invoicing, which should be the bare minimum in worker protection,” said Larry Goldbetter, President of the National Writers Union. The Freelancers’ Union noted that the decision marked Governor Hochul’s second freelancer-pummeling decision this year, after rejecting legislation (S8654A/A9882A) to extend to freelancers a state-sponsored retirement savings program. But advocates see the passage of the law as a very hopeful sign.

A more controversial story about creating labor protections and freelancers has been playing out in California and New Jersey. In 2019 California Governor Gavin Newsom signed into law a bill called AB-5 creating strong conditions under which employers are required to treat freelancers as employees and provide benefits. The aim was to protect app-based gig-workers from exploitation, but freelancers of many sorts rose up to say that the criteria were too restrictive and many kinds of workers, including writers and journalists, were being denied needed opportunities to work on a flexible schedule—an option often pursued by historically disadvantaged workers like mothers with small children and people with disabilities. Also, writers working as salaried employees can have copyright in their work claimed by their employer. Jane Friedman identified a number of instances in which California writers and other workers lost income as a result of the law; Vox Media, which is based in San Francisco, severed ties with hundreds of freelancers that it was not equipped to bring on as salaried employees. After fierce protest, California passed a supplementary law to relax the category, but some constraints remain on admissible behavior in the “freelance” category. The American Society of Journalists and Authors filed a suit against the law that the US Supreme Court declined to hear. With a record-setting financial assist from Uber and Lyft, California voters passed a ballot measure, Proposition 22, to offset the law’s impact on gig-workers, which was ruled unconstitutional by the state Supreme Court. The law remains controversial in California and comparable legislation passed in New Jersey in 2021, and proposed in other states, has kicked up similar resistance.

COVID relief and economic recovery legislation (for example, the Paycheck Protection Program, the second 2020 Stimulus Package, American Rescue Plan, the Inflation Reduction Act, and Build Back Better) have had provisions beneficial to freelancers, acknowledging that so many people during the lockdown were struggling to scrape together an income. President Biden campaigned on, and is now promoting, legislation that would give freelancers greater power to organize, called the PRO Act (it has passed the House and has been in committee in the Senate for almost two years). The PRO Act is supported by the Freelancers Union, the National Writers Union, and the Authors Guild but resisted by many activists who protested the California and New Jersey legislation, because it would use the same restrictive criteria (the so-called ABC Test) to designate freelance work. The Freelancers Union argues that the use of the rule in this instance is not restrictive because it grants freelancers the opportunity to organize, but does not limit their ability to pursue flexible work as the California and New Jersey laws have. Opponents say accepting the definition is a slippery slope.

Literary organizing had a big victory this month when publisher HarperCollins finally reached an agreement with its long-striking workers, whose most prominent demands were a pay increase and more substantive diversification practices. The strike dramatized the extent to which low pay, especially in the high-cost environments where publishers usually operate, limits the range of candidates realistically able to pursue publishing careers, putting the lie to publishers’ on-paper commitment to increasing diversity. Management’s refusal to compromise in the Harper strike was an embarrassment for the industry (authors and agents came to the defense of the union) and yet—the resulting increased pay still seems unliveably low. As Constance Grady pointed out for Vox, the salary floor demanded by the union, $50,000, is still 12 percent below what the Economic Policy Institute identifies as a livable wage in New York City, and the union seems unlikely to have come out of the negotiation with its maximum demand. Whether the post-Covid expansion of remote work will create opportunities for employees to live in lower-cost communities remains unknown; anecdotally publishers appear to be pressing for at least partial return to in-person work.

I am left wondering, especially in light of layoffs at Harpers and elsewhere in the industry, whether the margins of publishing, even with an equitable salary structure and reasonable profit expectations, are sufficient to maintain a workforce at a living wage. Critics I know argue both that a modest pay increase at the junior level would go a long way, and that publishing houses, which have leaned toward self-preservation and are slow to change, spend too heavily on upper management. N+1 publisher Mark Krotov notes the plethora of “VPs” and “MVPs” and “EVPs” surfacing in last year’s Penguin Random House / Simon & Schuster trial, and quotes journalist and scene-watcher Alex Shepherd’s reference to the bloat of a “terminal-stage cultural business.” Maybe so; I’d like to see the numbers. A recent Publishers Weekly survey found senior managers reporting a median $168,000 income in 2021, with an overall median income of $72,000. Rumblings continue that the price of books is due for an increase to meet costs, further limiting the access of other-than-flush readers to new books.

It seems ironic, and ominous, that such a visible share of contemporary organizing is going on in industries—publishing, journalism, academia—that are both vital to the maintenance of an informed populace and barely solvent. (There do seem to be some extravagant spending habits in higher education, and yet higher education remains (1) dependent on an unprotected, low-wage labor force of adjuncts, dramatically illustrated in a recent New School strike, (2) unaffordable to most people without crippling debt, and (3) in its less plushy precincts, contracting.)

I’ve argued elsewhere that publishing and all our institutions for arts and learning require more robust supports so that people can both afford to work in them and afford the product. I would love to know if reallocating expenditures would cover the bill. Meanwhile, employee access to health care and affordable housing, commercial rent control for small businesses, student debt relief, paid family leave, more government support for translation and library acquisitions, anti-trust action against consolidated printing and distribution, would go a long way toward abating the punishing commercial environment in which arts and ideas are expected to flourish in this country, conditions that have the effect of training their attention on wealthy enablers rather than the audience they serve.

Ann Kjellberg is the founding editor of Book Post.

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