July 28, 2017

No Magic Words, Or How To Read a Contract | Peer to Peer Review

There is a rather odd attitude about contracts in higher education, and no doubt elsewhere as well.  Many seem to have the idea that a contract contains “magic” language known only to lawyers, and that that language can be effective regardless of the context in which the contract is to function. Often I encounter the apparent belief that one contract is as good as another, as long as some lawyer somewhere wrote it.

The truth, of course, is that contracts are “private law” arrangements intended to do specific things that the parties to the contract have decided on. The most important language to have in any contract is language that accomplishes those intended things, that binds the parties to the promises and activities they have agree upon between themselves. There is no magic here, and a lawyer’s role is simply to ensure that the language will actually accomplish what her client wants it to, and will not do things her client would rather not have happen. Stilted and formal language (often called “boilerplate”) is not necessary, and when it is used, its only value, if it has one, is to evoke clear and traditional interpretations in common situations.

Contracts are almost never interchangeable, because people’s wishes, needs and desires are seldom interchangeable.

A few weeks ago I read a contract that a small academic press sent to a putative book author which illustrated this mistaken tendency to think one contract can serve many different needs. This book contract included totally inappropriate provisions, including an unprecedented requirement that the academic author carry insurance in the state where the press is located, and an allocation—for a volume of literary criticism—of video game and theme park rights. The obvious conclusion was that the press had simply adopted a contract used in some other field, or at least some other branch of publishing; it would have been most appropriate for publishing a graphic novel, I think. The comic, but unfortunate, result was to create the impression that the press did not really know what was in its own authors’ contract.

This tendency to adopt a contract and use it without knowing whether or not it does what is desirable in the particular situation is one reason, among many, why it is dangerous to sign contracts without reading them. Not only might you commit yourself to things you did not intend, you may even commit yourself in ways the other party didn’t intend either!

Recently, the watchdog group Consumers International published a review of international IP laws and the negative effect such laws can have on consumers. Among other reforms, they call on creators, as well as lawmakers, to demand better contracts that facilitate access in ways that more directly benefit users (as well as the creators themselves), rather than narrower commercial interests. Scholarly authors have, by and large, known this was needed for many years; the problem is how to accomplish it.

One way is to negotiate on an individual basis. Sometimes that is the only choice, and sometimes it is the best path because the author has very specific needs. Contracts, as I am insisting, are meant to address the particular needs of the specific parties, so negotiating over those needs is the heart of the process of contract formation. No author or creator should ever agree to a “click through” publication agreement or any other kind of contract about their own work that cannot be negotiated.

But there is another approach that might work even better. Scholars should begin to bring their own model agreements to the table when seeking to publish their work.

I am not suggesting that each author should develop his or her own publication contract of course; that level of specificity is neither needed nor desirable. But as we work on publication issues with our faculty members, we tend to discover that their needs in regard to rights transferred, rights retained, and future uses contemplated vary by discipline or discipline group. The one size fits all contracts of large publishers do not fit those needs very well, but individual negotiation is inefficient. It is the scholarly societies, which are created, after all, to serve disciplinary ends, which are in the best position to draft model contracts that would be broadly useful but specific enough to meet the needs of scholars within a discipline.

Mathematicians have developed a very different approach to disseminating their own work, and accessing the work of their colleagues, from those that have developed in literature or anthropology. If the approach to publication contracts is to be made more rational and more attuned to the specific contexts that contracts are supposed to address, the disciplinary groups need to lead the way. We could make a lot of progress, I hope, if major scholarly societies drafted model publication agreements and offered them to their members to use.

I have been told by a couple of publishers that they cannot accept contract addenda because they cannot manage different agreements with all of their authors. Yet the single contract for all authors is an increasingly unworkable approach, especially when the contract used has not been chosen with care. A balanced approach would be model contracts specific to disciplines; publishers would have only a few different (and predictable) documents to deal with, and the transaction costs involved in negotiating with individual authors could be reduced.

Contracts are powerful tools, and as in every endeavor, we need to use the right tool for the right job. As situations change, contracts have to change with the circumstances, lest we risk disastrous results. Discipline specific societies that represent scholars seem like they are perfectly positioned to take the lead in moving scholarship toward more sensible, and sensitive, publication contracts.

Kevin L. Smith About Kevin L. Smith

As Duke University’s first Director of Scholarly Communications, Kevin Smith’s (kevin.l.smith@duke.edu) principal role is to teach and advise faculty, administrators and students about copyright,intellectual property licensing and scholarly publishing. He is a librarian and an attorney (admitted to the bar in Ohio and North Carolina) and also holds a graduate degree in religion from Yale University. Smith serves on Duke’s Intellectual Property Board, Digital Futures Task Force and Open Access Advisory Panel. He is also currently the vice chair of the ACRL’s Scholarly Communications Committee. His highly-regarded blog on scholarly communications discusses copyright and publication in academia, and he is a frequent speaker on those topics.

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