Academics contributing to books are risking their livelihoods

It is scandalous that wealthy publishers make academics provide what is, in effect, unlimited legal expenses insurance, says Andrew Tettenborn

九月 15, 2022
French postcard about 1900 showing a mock-up execution in a photographer's studio to illustrate Why should academics risk their livelihoods in contributing to books?
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There are lots of reasons why you, a middling academic, might want to edit or contribute to a collection of essays. These include pride, intellectual kudos or, in the UK, a need to boost your likely rating in the Research Excellence Framework (REF). The one thing you don’t do it for is the royalty cheque which is small or, more probably, non-existent.

On the other hand, at least accepting the invitation won’t cost you, except in time. Or will it? Increasingly, you would be wise to look carefully at the contract before you agree to it.

In the old days, contracts didn’t amount to much. You would probably guarantee originality and that, to the best of your knowledge, your work was not defamatory or illegal, but that was it. No longer, however. One publisher (I won’t name it, but it’s part of a major international conglomerate) insists on a contract stating that “the Author will indemnify and hold harmless the Publishers against any loss, damages, injury, costs and expenses (including any legal costs or expenses, and any compensation costs paid by the Publishers) arising from any alleged facts or circumstances which, if true, would constitute a breach of the warranty”.

Even if such verbiage makes your eyes glaze over, think carefully. You’re guaranteeing to pay from your own pocket, without limitation, for all the consequences to the publisher of any breach of copyright, libel or breach of privacy.

And it gets worse. The reference to “alleged facts” means that even if you acted entirely properly, you still cannot sleep easy. If some crank or obsessive chooses to sue the publisher with some trumped-up allegation that is clearly nonsense, the publisher can still bill you personally for every penny of the lawyers’ fees it incurs to dismiss the claim (which may amount to many thousands of pounds). Furthermore, if you are also signing as an editor, you are impaling yourself on the same hook for every contributor’s chapter.

Wait a moment, you might say. Aren’t publishers insured against this sort of thing? Well, yes, but that doesn’t necessarily protect you. The insurance will be subject to an excess, possibly large, so the publisher retains every incentive to bill you. Furthermore, under a legal doctrine called subrogation, the insurer can take over the publisher’s rights and sue you itself for its outlay. So even if you don’t hear from the publisher, you could still get a large bill from Mega Insurance Inc, which you would have no choice but to pay.

The company responsible for this example is far from alone. Many multinational publishers are imposing equivalent terms. At least one UK university press, to its shame, also imposes a similar clause.

It is scandalous that wealthy commercial firms should make modestly paid academics provide out of their own pocket what is, in effect, unlimited legal expenses insurance. The argument that authors should be required to stand by their research hardly justifies extending the liability even to cases of entirely spurious claims.

Publishers will no doubt say that in 99 per cent of cases they wouldn’t dream of enforcing their strict rights. But if removing terms like this would make little practical difference to their bottom line, they have even less excuse to hold the threat of ruinous financial liabilities over their authors and editors.

What can academics do? You can try to avoid publishers that impose this liability. You can also try to argue; a few publishers might, if they really want you, be flexible. But most won’t. Recently, I queried a ferocious indemnity clause in the contract for a book I was thinking of editing, saying I saw no reason to put my entire fortune on the line in circumstances I personally had no control of. I was brusquely told to take it or leave it. After some soul-searching, I chose to leave it. Many younger academics might find such a choice more difficult.

Universities may have a responsibility here. Telling researchers to publish and edit as part of their job changes complexion rather when it involves demanding that they expose themselves to substantial personal liabilities. Universities may find it financially hard to be seriously fair and indemnify all their employees, but what about this for an idea? Universities need publishers, but only if their terms comply with funders’ and regulators’ mandates. For instance, the REF authorities already exclude journals that do not allow adequate open access. Funders could flex their muscles further and require eligible publishers to put strict limits on the personal financial liabilities they impose on their writers.

Commercial publishers already demand a great deal from authors and editors without paying them a penny for it. Expecting them to put their whole livelihoods on the line is a step much too far.

Andrew Tettenborn is professor of law at Swansea University.



Print headline: Why should academics risk their livelihoods in contributing to books?



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Reader's comments (2)

This is precisely why I have decided to self-publish my forthcoming (second) book, "The University-Charity: Challenging Perceptions in Higher Education". I walked away from two major publishers with such clauses (one identical to the one you set out).
And this doesn’t even touch upon the outrageous prices publishers charge to sell these titles back to their home institutions as ebooks! See #ebooksos for more details on this shocking addition to the Great Academic Publishing Con.