Thursday, 3 December 2015

A tribute to Jeremy Phillips by Peter Groves

On Wednesday 25th, I had the honour of speaking at Jeremy’s penultimate event before his retirement, the annual IP editors and publishers lunch. Jeremy, as I reminded him and explained to the audience, had impressed me with the careful consideration with which he evidently approached the issue of the invitation: it was after last year’s event but before we had left the building, and we had found ourselves standing side by side in circumstances which decorum prevents me from describing in greater detail, prior to setting out for our next engagements. “Would you like to give the keynote talk next year?” he asked me. I replied to the effect that I would be pleased to do so. “That’s one thing off my to-do list,” he said.

I told the audience that, in the same spirit, I had set aside a few minutes the previous day to prepare my talk. In truth I thought about it, off and on, for the entire year, although that probably didn’t show.

Being a publisher and editor as well as an author, I wondered which hat I should wear for the occasion. But being also a member of the Management Committee of the Society of Authors, I quickly decided to take the opportunity to address a roomful of publishers as a trade unionist. I put on my red tie.

This is not the talk I gave. That would be too boring. As I remarked to Andy from the 1709 Blog and Barbara the following afternoon, during the tea break of Jeremy’s final event, had I been giving the talk then it would have been rather different. Better. This describes the improved version.

More than 20 years ago, when I was teaching at London Guildhall University on the then-new Legal Practice Course, my intellectual property class found itself discussing oxymorons. I suspect I was responsible, having embarked on some digression or other. Someone wanted to understand what an oxymoron was. I think someone suggested “pretty ugly”. “Military intelligence”, another offered. “Scottish Amicable” said another, a trade union officer of whom I had expected better, so I swiftly closed down the discussion. Now every time I encounter the phrase “creative industries” that episode comes back to mind.

No industry creates anything. Individuals create. They may be employees, but of course that only affects the ownership of the rights in their creations. I know that the expression is being used loosely (although as lawyers we should resist laxity like that) but when all the authors, composers, artists, film directors and so on in the world are lumped together anonymously under a single heading, their work is devalued and they are demeaned. Just like when their work is referred to as “content”.

I don’t go the cinema very often, but a poster for a film called “Slavery Free” recently caught my eye. That’s also an oxymoron, I suppose, but it’s also axiomatic: of course slavery is free, that was always its unique selling proposition! And if by slavery you mean the condition of being forced to work for another for no or very low pay, there is a lot of it about in the legal publishing field.

Of course, legal authors are not required to work for nothing. They choose to do so, and often their firms encourage them to. Consequently few if any authors make a living out of writing legal books. Legal authors make their living by practising or teaching law, not by writing about it. There is not a class of professional legal authors.

This is my great-grandfather, Matthew Henry Groves. To the best of my knowledge he is not the
subject of a well-known (to Jeremy, anyway) song by Fairport Convention. He was a founding member of the Institute of Chartered Accountants of England and Wales. His son, my grandfather, was also a member of the Institute, and so was my father, and so is my brother. They all share the same facility with numbers. I don’t. I am more comfortable with words, so I became a solicitor.

Lawyers are professional wordsmiths, but not all are equal. Words and language are the tools of our trade. We are all, in a way, full-time authors, but some are more professional than others. Just because you’re a lawyer doesn’t mean you can write well. Jeremy explained the problem very well in his valedictory editorial in JIPLP: lawyers write well for themselves or their clients, but they often fail to write well for their readers.

A professional author will recognise a parallel construction, and be able to execute it correctly. They know what a splice comma is, and that it must be avoided. They understand that “however” is not a conjunction. They take care to avoid compound preposition, unless they need to write a minimum number of words. They might even have an idea about the subjunctive – but if not, so be it, although if I were you I would familiarise yourself with what someone like Fowler has to say on the subject.

A professional author will also be able to use the terms “verbal” and “oral” correctly, and knows that “a verbal contract ain’t worth the paper it’s written on” isn’t merely funny, it’s hilarious. He or she begins work on a document by using the search-and-replace function to change “shall” to “will”. And finally (enabling me to segue neatly into the next part of what I want to say) he or she appreciates that an acronym is a special type of abbreviation, not a synonym for it.

A professional author is more likely to produce material that is right first time. Every piece of work benefits from the attention of a good editor, of course, but how much better to receive material that needs only a light touch. Using professional authors, and treating them like professionals, will pay publishers dividends.

So how should professional legal authors be treated? My trade union has recently launched a campaign using the catchy acronym “CREATOR”. It concerns the terms on which writers are contracted to publishers.
  • 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 that 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 
  • A - fair, understandable and proper Accounting clauses. 
  • 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. 

No author is ever completely satisfied with their publisher. But publishers must be aware of the value of what authors create for them, and recognise their contribution in an appropriate fashion. Without authors, of course, there would be nothing to publish – and as technology provides new ways for authors to get their material before readers, it is high time that legal publishers started to show that they appreciate what professional authors can do for them.

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