Nick Kivits was terrible at negotiating early in his career. When a publisher sent him their standard agreement for freelancers, the Dutch journalist gave it a quick read and sent it back. “The first few years I did it all wrong,” he said. “I signed everything.”
That was more than 10 years ago. Today Kivits has become one of the most visible figures leading the charge for better terms for freelance journalists in the Netherlands.
Kivits has parsed and assessed the standard freelancer agreements of three dozen publishers so local journalists can better understand the consequences of the terms they agree to, and learn to distinguish between the good, bad and ugly. “It’s vitally important that people know what’s in those terms and that they use this to try to negotiate a better deal for themselves,” Kivits said.
On his website freelancevoorwaarden.nl (Dutch for “freelance terms”), Kivits explains the terms of contracts such as how long a company can reuse the story, whether they’re allowed to resell it to third parties and what their legal liability provisions entail. He does this in a question-and-answer format, using plain Dutch and a tone that is both conversational, and little irreverent. For instance: “Will I be paid extra for re-use? Haha. No.”
The website has received marketing and technical support from the Dutch journalists’ collective, De Coöperatie, and financial backing from the Lira Auteursfonds Reprorecht, the local copyright organization for writers and authors. It draws between 500 to 1,000 visitors every month and also includes a section with features, short essays, negotiating tips and a video in which Kivits explains the key legal terms found in most agreements.
Kivits — who works as a freelancer covering tech, space and innovation — launched the website in 2018 at a time of mounting outrage against low freelance rates in the Netherlands. Photojournalists went on a nation-wide, daylong strike in January and in April, two journalists waged a historic, successful lawsuit against DPG, the biggest publisher in the Netherlands. And according to a large-scale Dutch survey, the average annual income for freelance journalists was EUR24,300 last year.
Kivits’ website has made visible that there is a problem with not just the rates journalists are paid, but the agreements they sign too.
Challenges with freelancer agreements
Compared to other creative sectors, agreements between freelance journalists and media outlets are characterized by a far-reaching transfer of rights from the first to the latter, said Sebastiaan Brommersma, an intellectual property lawyer and part-time journalist who’s also written for freelancevoorwaarden.nl. Columbia Journalism Review has called the process a “rights grab.”
Media outlets’ position of power shows in the standard terms they draw up for freelancers, Brommersma said. “They get the copyright to your work. They can subsequently truly do with it whatever they want. They never have to pay any additional compensation for this, and they can subsequently simply sell it on without you ever seeing any of that money.”
In theory, such provisions and terms are up for negotiation because journalists and media outlets are operating in a free market environment. But in reality, freelancers have bills to pay, and they don’t want to acquire a reputation for being “difficult,” Brommersma said — a problem that is aggravated by the high concentration of media ownership in the Netherlands, with three major conglomerates owning 90% of the market.
The current supply-demand ratio also diminishes journalists’ appetite to bargain a better deal, said Brommersma. “I think that is something that is always playing in the back of the minds of freelancers when they sign an agreement. Because they think, ‘If I don’t, 10 others will.’”
With his website, Kivits created a growing awareness of the lop-sidedness of freelancer agreements, which has meant that a lot of journalists have also started asking him to draft terms that would be more favorable to journalists.
In January 2020 Kivits will unveil a set of “fair terms” he created with EUR2,500 in financial backing from 88 crowdfunders, raised in just seven days. The terms, reviewed by Brommersma on their legal soundness, will be fair to freelancers and media outlets, Kivits said. “You could make everything in favor of the freelancer but then publishers will say: ‘OK, byeeeee.’ And then you’re still left with nothing.”
There currently aren’t any plans to translate the fair terms from Dutch into English, but Kivits said he’d be open to the idea if there were a demand.
Tips for reading freelancer contracts
In the meantime, Kivits advised freelancers to scan contracts for three things: exclusivity terms, payment terms and copyright clauses.
An exclusivity term prohibits freelancers from selling a story they wrote for publication by other media outlets. A term of one week is great, for instance. “They can exclusively publish my work for a week, and then I can still use it after that,” said Kivits. “You might transform a news story into a feature where you reuse a fair share.”
For payment terms, Kivits advised not agreeing to terms that are bound to create cash flow problems. He gave the example of Pijper Media, a Dutch media company that pays freelancers one month after the issue in which their story was published is no longer available on newsstands. “You could wait for six months for your money that way if you write for a publication with a bit of a lead time,” he said.
Copyright clauses determine who has ownership over a piece of work. Kivits advised fighting back against clauses that fully transfer a freelancer’s copyright to a media outlet, allowing the company to exclusively sell his/her article around the world, among other things. Publishers often end up not exercising these rights, which is unfair to the freelancer, but more fundamentally,“It’s my work, so the copyright should be mine,” said Kivits.
More than anything else, Kivits and Brommersma insisted that freelancers should never be afraid to ask questions. Try to learn what a publisher is really after and meet them in the middle, Brommersma said.
For example, a company might insist that freelancers transfer their worldwide copyrights, even though they only publish in Belgium and the Netherlands. “In that case, you could say: ‘You are getting a license for Belgium and that’ll do because you’re not going to do anything with it further anyway,’” Brommersma said. “If you never ask that question, then you never find out.”
Many freelancers still mistakenly think that there is no room to negotiate, Kivits added, so they don’t, and they end up giving away more rights than is necessary or desirable.
“You won’t get everything you want, but that’s the negotiation game. And in some cases, you need to be prepared to walk away,” he said.