IP Draughts is currently conducting experiments that may lead to a new theory of commerce: that the increasing length of contracts will eventually lead to the heat death of the business world. A time will come when all available energy for business activities is diverted into the negotiation of overly-complex contracts; when the underlying business activities must inevitably cease, modern civilisation will freeze, and we will revert to an agrarian economy in which concepts such as intellectual property become meaningless.
On IP Draughts’ desk is a draft publishing agreement that he has been asked to sign. It is for the fourth edition of one of his books. His contact at the publishing house has helpfully highlighted the changes that are proposed over the contract that was signed for the third edition. According to a word count, the new contract will comprise 5,645 words, compared with 2,613 words for the previous version.
IP Draughts wonders how often there is litigation in relation to publishing contracts for legal texts. He has not heard of any, and the small sums of money at stake make litigation seem unlikely as a cost-effective strategy. So why does a publisher feel the need to more than double the length of the contract, and in the process incorporate aggressively one-sided terms?
Could it be that the publisher is now employing in-house lawyers, who are asked to review the company’s existing contracts? And that many lawyers, if not given clear direction and instructions, will tend to add clauses to protect their client’s interests, leaving it to others to decide on whether the overall balance of the document is commercially appropriate? And that many clients are not that interested in contracts, and will tend to follow their lawyer’s recommendations?
IP Draughts has no information on whether this has happened in the present case. He does, however, recall that another legal publisher who presented a contract to him recently had also revised their standard contract, but had clearly taken a policy decision to simplify their template and make it more even-handed. IP Draughts knows which publisher he is more inclined to offer new projects to.
Someone once said that to understand all is to forgive all. (The internet is divided as to whether the first author of this piece of wisdom was Voltaire, Madame de Staël or Evelyn Waugh.)
Viewed as a paper exercise, and from the perspective of protecting the publisher, one can understand the motivation behind many of the revisions in the current draft contract. But do the revisions result in a better contract? Consider the following example. First, the previous wording, and then the new version.
If in the Publisher’s view the Work as delivered requires amendment to become acceptable they shall give the Author the opportunity to make such amendments. If the Author is unable or unwilling to do the work him/herself …
If in the Publisher’s sole view the Work as delivered is not professionally competent and/or does not conform in nature, scope, length, format and style to the specifications agreed with the Publisher and/or with any synopsis or proposal or other material upon which the Work was commissioned or acquired and/or does not comply with the warranties given to the Publisher hereunder the Publisher shall give the Author the opportunity to make such amendments or to make arrangements for this to be done at the Author’s sole expense. If the Author is unable or unwilling to do the work him/herself …
There seems to be a blizzard of new words in the second version that don’t add much to the basic obligations of the clause. Leaving aside general drafting issues such as the sentence length and complexity, a few points jump out:
- IP Draughts is not sure what the difference is between a “view” and a “sole view”.
- Surely the Work either complies with the specifications or it doesn’t. Why is it useful to pick out “nature, scope, length, format and style”?
- The drafter has not covered himself in glory by leaving in the words “such amendments”. Here, “such” links back to the word “amendment” in the first line of the old version – a word that doesn’t appear in the new version.
- If IP Draughts were being really picky, he might change the word “view” to “opinion”, and “amendment” to “revision”.
Usually, IP Draughts is a hired hand, reviewing contract terms for someone else who takes the commercial decision on what is acceptable. In this case, he is the principal, and he strongly dislikes being asked to sign a contract that is more than twice the length of the previous version, contains many provisions that worsen his contractual rights and obligations, and contains indigestible prose.