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Calls for action on Creator Contracts

AT THE ALL Party Writers Group Summer Reception at the Houses of Parliament in July, attended by the Freelance, the new secretary of state for Culture, Media and Sport John Whittingdale said, "We must do nothing that undermines the intellectual property rights of our authors.". (We all need to bother Whittingdale regarding the consultation on the future of the BBC, by the way, details are here.)

Authors and creators increasingly don't even have any intellectual property rights left to undermine, as they're forced to literally give these away for nothing to the clients. Contract law continues to hold on to the fantasy that we and, say, Rupert Murdoch are equal partners in negotiation in some sort of mythical free market level playing field, but this is clearly not the case.

At the same event, Society of Authors chief of executive Nicola Solomon called for a review of laws on creator contracts and for legislation to address unfair contract terms. Nicola spelt it out, C-R-E-A-T-O-R

C stands for clearer Contracts, including written contracts which set out the exact scope of the rights granted.

R is fair Remuneration. Equitable and unwaivable remuneration for all forms of exploitation, to include "bestseller" clauses so that if a work does far better than expected the creator shares in its success, even if copyright was assigned. And "unwaivable" means it can't be given away (or forcibly given away as a result of corporate arm-twisting).

E is for an obligation of Exploitation for each mode of exploitation, also known as the "use it or lose it" clause: fair, understandable and proper Accounting clauses.

A is for Accounting, which in this case is about publishers providing clear statements to authors with a breakdown of the royalties they've earned.

T - Term. Reasonable and limited contract terms and regular reviews to take into account new forms of exploitation.

O - Ownership. Authors, including illustrators and translators, should be appropriately credited for all uses of their work and moral rights should be unwaivable.

R - all other clauses be subject to a general test of Reasonableness, including a list of defined clauses which are automatically deemed to be void and a general safeguarding provision that any contract provision which, contrary to the requirement of good faith, causes a significant imbalance in the parties' rights and obligations arising under the contract to the detriment of the author shall be regarded as unfair. One example would be Indemnity clauses which put all the risk on the author.

Nicola pointed out that publishers are holding on to moribund rights which authors could exploit more effectively, creating income for themselves and the British economy. She cited the example of Catherine Gaskin, where the out-of-print titles have been reverted to the SoA and are now earning over £7,000 per year.

She said of her CREATOR laws that "These laws are not radical. They already exist throughout many European countries. These changes are easy and timely and we urge that they should be effected.".

Legislation is needed to protect creators, said Nicola. Creators suffer from a power imbalance when negotiating with publishers, and that "Authors are not in a strong negotiating position. Publishers are often large multinationals while authors typically work alone… Creators frequently need to negotiate with monopolies or with dominant players in highly specialised markets, such as scientific publishers. Individual creators are therefore at an inherent disadvantage when negotiating the terms of their contracts."

Society of Authors President Philip Pullman (also present) supported Nicola’s call, and spoke of the "thickets of legal language that grow so vigorously around the commercial exploitation of our work… the balance of fairness has tilted the wrong way, and it's often not only the work that's being exploited - its creators are too. It's time for that to stop, and for authors to be rewarded here as justly as they are elsewhere."

(The speeches by Nicola Solomon and Philip Pullman from the Writers' Group gig are in full are here.)

Last modified: 29 Jul 2015 - © 2015 contributors
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