Contract Review: CanWest

Someone jsut sent me the new contract from Canadian publisher and broadcaster CanWest. It's pretty much the same for writers and photographers, so both should be able to get something from this review. Please remember that I'm not a lawyer and that this isn't legal advice:

• CanWest seeks rights for all media, including "any and all third party print, broadcast, online, digital, and other media and the right to repurpose and/or resell in any media worldwide." Furthermore, payment schedules can be changed by the company without notice, so you could find yourself suddenly working for less money than you thought.


• The first numbered clause indicates that all rihts are exclusive, so the writer or photographer can never publish the material in any way, shape, or form (including self-promotion on a web site) without permission. The company can make any changes it wants and the writer or photographer has to waive moral rights - non-existent for US writers, but for Canadians as well as for US visual artists (photographers), it means that even if the company makes you look bad with the changes, you can't take any issue. They can sublicense any of the rights to anyone, which means that, combined with the moral rights waiver, you have no control over how and in what context your material is used. If a legislature grants additional rights in this area, you waive them as well.


• The second clause looks for a warranty, or promise, that the material "shall not infringe upon or violate the rights of any third party, whether personal or proprietary, including copyright." That means if a court in any part of the world (worldwide rights) decides that your piece has infringed any rights whatsoever, you've just breached the contract. Remember that laws vary widely, and you're promising that which you probably can't know. The contract also restricts the damages you can seek to "damages at law," and that a court cannot curtail the company's rights. I know less of Canadian law than US, but I think there is a distinction in terms of the remedies available if they cause you an injury of any sort. That means you could sue for money but not to force CanWest into any particular action, including an injunction from doing something or other and where money alone won't make up for it. If you use best efforts in trying to comply with this, the company will defend you in a defamation action - but no other type of action is mentioned, so for those you're on your own.


• In section three, aside for the "independent contractor" language you might expect, the contract further says that your services "are not now, and will not become, subject to any union or collective bargaining agreement... ." In other words, should someone organize a union for freelancers in Canada, this agreement is exempt.


• Section four provides for a freelancer to get 50 percent of the gross (that at least is a reasonable amount) for syndication sales. But the contract defines that as individual sales to third parties and not part of the Base Use (everything owned by the company or affiliated with it, including broadcast media and the Canada.com web site) or Electronic Use (all third party online and digital services). Since the base use includes the CanWest News Service, that may not leave a whole lot.

Sounds like the CanWest contract is a Can't Do for freelancers who value their business.