In early 2022, the Society of Authors (SoA) joined forces with the Writers’ Guild of Great Britain to publish a report into the fact that many authors report feeling misled, in some cases badly misled, by the terms offered by some publishers which seek a contribution towards the cost of publication. Prompted by increasingly being contacted by writers reporting poor experiences after entering into paid-for publishing contracts, the organisations surveyed their members and set out the findings.

A couple of years down the line and the flood of disappointed writers shows no sign of abating. While we do what we can to help, it cannot be overstated that the detail of the paperwork and the terms and conditions of the contract ultimately decide what can be done.

In some of the most egregious examples that we have seen, few of the undertakings seemingly proposed were actually met by the paid-for service company, with some authors required to pay (sometimes significant amounts) to recoup their rights, if they could recoup them at all. The situation is of course wholly unfair but to what extent might the agreements be challenged at law? Not, perhaps, as much as you might think.

The Unfair Contracts Act 1977 imposes limits on the extent to which liability for breach of contract, negligence or other breaches of duty can be avoided by means of contractual provisions such as exclusion clauses. However, some key provisions of that statute do not apply to any contract so far as it relates to the creation or transfer of an intellectual property right or interest (ie copyright in creative work). There is a piece of legislation, the Consumer Rights Act 2015, which protects consumers in their dealings with companies. This statute sets out a consumer’s statutory rights in respect of contracts for goods, services and digital content supplied by a trader, and it imposes a fairness test, namely the requirement for transparency of all written terms. However, these protections and the remedies available are afforded only to consumers and not to individuals working in a professional, trade or business capacity. This is likely to exclude many professional writers.

With little protection from existing legislation, and with concerns around this area only increasing, industry implementation of the SoA’s longstanding CREATOR campaign is needed more than ever. The campaign calls for legislative reform to offer authors greater legal protections. The CREATOR acronym spells out seven areas that need to be protected in contracts for any party working with authors and creators, so that all creators are protected when they sign a contract: Clarity, Remuneration, Exploitation, Accounting, Terms, Ownership, and Reasonableness.

Why is building protection into the legislation so important? In the event of a contractual dispute coming before a judge, a ruling will be made according to the established principles developed through the courts. One of those is of particular note: it is not the role of a judge to save a party from a bad bargain. In other words, just because someone has entered into a poor deal, that will not, of itself, give them a right to receive a refund or recompense at law. To a certain extent the maxim echoes the commonly understood ‘buyer beware’ principle and a desire within the UK’s legal history to hand contracting parties’ substantial autonomy as to the deals that they wish to make. It is not, the courts have established, for them to interfere in those freedoms.

Our 2022 ’Is It a Steal?’ report, mentioned above, sets out a number of recommendations for writers, publishers and other third parties. While we continue to campaign to raise awareness and compliance with these recommendations, it is worth reiterating a key message here: before entering into any paid-for service contracts – or indeed any contract under which you either pay money or grant any rights in your work, as a general rule always exercise extreme caution and have your contract vetted by the Advisory team at the Society of Authors.