The PRO Act, as passed by the House and currently in the Senate, is the most sweeping, comprehensive labor bill in decades. It amends the National Labor Relations Act to strengthen collective bargaining rights, and it would give many professional freelancers the same rights as employees to collectively bargain with the companies that employ them. This is a profound development for freelance writers.
The Authors Guild has long advocated for laws that would enable book authors, freelance writers, and other freelance creators to collectively bargain. The PRO Act would be a boon in much the same way that collective bargaining power has helped the screenwriters of Hollywood. Without collective bargaining rights, writers and other freelance creators will continue to be restrained by antitrust law from acting together to negotiate better rates or financial terms.
Under current law, only employees may collectively negotiate the terms of their employment. Freelancers are treated as though they are independent, competitive businesses with the ability to fully negotiate with the buyers of their services, even though, like employees, they have little or no ability to effectively negotiate the terms of their employment, and they are generally underpaid.
To be clear, the PRO Act would not otherwise affect authors’ and freelancers’ legal status as independent contractors—a status that many writers hold dear for key reasons:
- Under copyright law, independent contractors get to keep their copyrights when they write (unless a contract provides otherwise).
- Under the current tax code, independent contractors may deduct business expenses (on the downside, they must pay self-employment taxes).
- Freelancers have unparalleled flexibility in working hours and workplaces.
In the last two decades, authors and freelance journalists have seen their incomes precipitously decline, while they also have been forced to hand over to publishers more of their rights. Writers need to be able to stand together to negotiate better terms, set compensation standards, and, when necessary, boycott publishers. The PRO Act would give them the ability to do all of these things and more to improve their bargaining position against publications.
Please let your Senators know that you support the PRO Act and ask them to ensure that it covers all freelance writers and authors without affecting their copyright ownership.
You can see if your senator is already a sponsor here.
PROPOSED AMENDMENT TO THE PRO ACT (highlighted in red)
To ensure that courts interpret the PRO Act to cover freelance writers and authors without affecting copyright ownership, the Authors Guild has requested that the language in red be added to Section 2 of the bill:
(2) EMPLOYEE.—Section 2(3) of the National Labor Relations Act (29 U.S.C. 152(3)) is amended by adding at the end the following: “An individual performing any service shall be considered an employee (except as provided in the previous sentence) and not an independent contractor unless—
- the individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact;
- the service is performed outside the usual course of the business of the employer; and
- the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.
As used in this subsection, a ‘service’ may include the creation of copyrightable content, and this designation shall not affect copyright authorship or ownership under Title 17, the Copyright Act.”