Hold on to your rights in all solar systems

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In order to get their work published, many academics sign one-sided contracts with publishers who demand the full copyright to their intellectual property. John reviews the hypocrisy in a contract that was sent to him.

My sceptical article on copyright in June provoked a furious reaction from industry lobbyists. Some correspondents even emphasised the personal benefit I derive from the protection of my intellectual property. So I was intrigued to receive a standard form contract for an article from a leading publisher.

The company seeks the exclusive right to produce, publish, store or copy the article, or any derivative of it, throughout the universe, and in every form or format now known or hereafter invented. So eat your heart out, extra terrestrials, if you have one: even if I acquire the capacity to communicate my ideas to you telepathically, I have relinquished the right. Do not expect to hear from me on the other side: this commitment extends for 70 years after my death.

More practically, the contract would prevent me using the material in a lecture, discussing it with students or summarising its content for the benefit of readers of this column.

Next, the publisher asks for a warranty that the article does not libel anyone or breach an existing copyright. Fair enough, you may think. If I am in breach of the warranty, the contract would allow the publisher to settle the claim and require me to meet the costs. Tough, perhaps, but not unreasonable.

But the indemnity covers, not just actual breach, but alleged breach. There are crackpots who believe that all human knowledge plagiarises their own original ideas, and vain chief executives who think that any criticism of them is libellous. This clause would allow the publisher to send these aggrieved individuals handsome cheques to smooth their ruffled feathers and oblige me not only to defray the sum but also to pay the bill of their no doubt expensive solicitors. Only a negligent lawyer would advise a client holding such a wide-ranging indemnity not to respond to the complaint in exactly that way.

What am I getting in return? The article is an academic one and, as is usual for academic articles, there will be no payment. English law requires that there must be consideration for a contract, so the generous publisher offers me one “complimentary” copy of my own work. Just as well, since it may be a breach of the agreement for me to store my article on my own computer.

Finally, the contract requires me to waive, unconditionally and irrevocably, all moral rights. Even if you have assigned your work to someone else – an employer or a publisher – your moral rights prohibit use of the material in ways that would damage your reputation.

I do not imagine the publisher plans to damage my reputation. So what is the purpose of this clause? This question needs to be seen in the context of the whole document, which is not only silly but inept. The enforceability of an agreement under English law in other solar systems has not yet been tested and the contract probably fails entirely because a “complimentary” copy, by definition, cannot constitute consideration.

I suspect the contract was drafted by an inexperienced lawyer whose brief was to deprive the author of every possible right. The result is a form of ritual humiliation, like being stripped of possessions when sent to prison: the signatory must acknowledge his abject dependence on the goodwill of the publisher.

These one-sided documents are widely employed, but are not sent to people who are represented by agents, the Society of Authors or the National Union of Journalists. They mostly go to academics, some of whom are flattered that anyone should want to publish their work. Such publishers as the FT do not need these rights to build successful businesses, and on my desk is a perfectly sensible standard form agreement for a different academic article from a different publisher.

We live in a rough commercial world, and if you can persuade people to accept harsh terms in return for nothing, some businesses will do so. Robert Maxwell’s early career was based on the discovery that exclusive rights to scholarly material could be profitable, because leading libraries had to pay whatever you asked. But we can surely ask those who engage in these practices to spare us the hypocrisy of claiming that their purpose is to protect and stimulate creativity. And warn scholars not to sign documents without reading them.

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