Authors often work in a solitary way, and our main task is very different from negotiating contracts and rights. It's not always easy to see our way through the thickets of legal language that grow so vigorously around the commercial exploitation of our work, nor to know how our own position with regard to our rights compares with others... The essential point is that 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.
Philip Pullman, SoA President
WHAT ARE we asking for?
A review of laws applicable to creator contracts and introduction of legislation to address unfair contract terms. The seven key requirements are C.R.E.A.T.O.R.:
C - Clearer contracts, including written contracts which set out the exact scope of the rights granted.
R - fair Remuneration. Equitable and unwaivable remuneration for all forms of exploitation, to include bestseller clauses so if a work does far better than expected the creator shares in its success even if copyright was assigned.
E - an obligation of Exploitation for each mode of exploitation. Also known as the ‘use it or lose it’ Clause. This is the French model.
A - fair, understandable and proper Accounting terms.
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.
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.
What's the problem?
The recent ALCS earnings survey found that the typical earnings of professional writers was around £11,000, but that the top 5% earn over 40% of all the money earned by authors.
Some of them could be earning more if they had access to their own work. The ALCS study showed that 70% of authors who relied on a reversion clause went on to earn more money from the work in question – yet many of our authors are unable to persuade publishers to revert the rights to even quite moribund titles. That means that works are out of commerce which could be earning money for the UK.
And that’s just one area where contract terms offered to authors have significantly worsened. Authors are not in a strong negotiating position. Publishers are often large multinationals while authors typically work alone. Especially at the start of their careers they may have little or no advice and are thrilled to be offered publishing contracts. 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. Many contracts are offered on a take-it-or-leave-it basis. Advice from a lawyer is unaffordable for most creators. While agents, unions and professional associations, such as the SoA, seek to address this imbalance the situation remains unsatisfactory for the majority of creators.
Here's what David Vandagriff, an experienced US media lawyer, has to say about publishing contracts:
after having reviewed many, many agreements and proposed agreements between traditional publishers and authors, I am prepared to say these contracts, as a group, stand apart from the general run of business agreements as conscience-shocking monstrosities. They're simply designed to screw authors and to give publishers control over their work that is far beyond what is regarded as reasonable….
The SoA vets over 1,000 members’ contracts a year and from some of the contracts I see that this might even be an understatement. We see many contracts where authors hand over all their rights for no advance and with no guarantee of exploitation by the publisher.
Why is this the time to address it?
There are two reasons why this should be addressed now.
The EU Study of 2013 showed that the UK is lacking the legal frameworks which protect creators in many other EU countries. It also shows that EU creators are often subject to onerous contracts and do not receive a fair share of the reward for their creativity. The Study says:
European authors are in a difficult position as demonstrated throughout this study. This patchwork of national provisions also prejudices exploiters of copyright works due to the uncertainties they face in an industry that is becoming more and more global.
The Reda report on copyright reform has now been adopted. In several places it affirms the importance of fair remuneration for authors and calls for improvements to the contractual position of authors and performers in relation to other rightsholders and intermediaries, notably by considering a reasonable period for the use of rights transferred by authors to third parties, after which those rights would lapse, as contractual exchanges may be marked by an imbalance of power. Many other European countries already have such legislation and to offer it to our authors is a powerful bargaining tool in EU negotiations.
2. At Home
Business-to-business legislation is in urgent need of review. The Consumer Rights Act has consolidated and clarified rights for consumers by taking laws out of many different pieces of legislation and putting them in one Act. What has been left for business is a ragbag of legislation, much of which does not deal with the realities of digital business and the impossibility of negotiating terms with global businesses. It needs reform in the same thorough and systematic way that was applied to consumer contracts.
What are we doing?
The SoA launched the C.R.E.A.T.O.R campaign at a meeting of the All Party Parliamentary Writers Group on 7 July 2015. Since then the issues have been raised in the House of Lords and we continue to lobbying key individuals in the Government.
We are also working in tandem with partner organisations. We are part of the International Authors Forum and have links with sister organisations around the world. We team up with other professional bodies for creatives to increase out impact and lobbying power.
15 March 2016 - Gathering Pace
22 January 2016 - C.R.E.A.T.O.R. Open Letter
5 January 2016 - International Call for Action on Contracts and SoA Open Letter
19 November 2015 - Creators Band Together in Fight for Fair Terms
17 July 2015 - C.R.E.A.T.O.R. Contracts Debated in Parliament
19 June 2015 - Fair Contract Terms and Copyright
 David Vandergriff, ‘The Bookseller Hires Author Solutions Exec To Spout Propaganda’, The Passive Voice, 7 June 2013
 European Parliament Committee on Legal Affairs, ‘Contractual arrangements applicable to creators: law and practice of selected Member States’, 11 February 2014