For fair contracts

LONDON FREELANCE Branch held its July meeting in a House of Lords Committee room. Why the Lords? We'd fully expected the Commons still to be embroiled in coalition negotiations. We blame the pollsters. Everyone else does.

Our topic was: what can be done about unfair contracts? Our host was Tim Clement-Jones, international lawyer and LibDem peer; and our other speaker was Stephen Doughty, Labour MP for Cardiff South and Penarth and Shadow Business spokesperson.

Mike Holderness introduced the issues. The law of England and Wales - and Scotland too - is based on a fiction. In the official picture, Mike sits down across a table from Rupert Murdoch, negotiates a fair bargain and shakes on it. Economists maintain that any contract is fairly made unless there is an actual, loaded gun pointed at one of the parties' heads.

In practice, freelance journalists and other creators are presented with contracts and told that if they don't sign, they don't work. There is no negotiation. Occasionally, clients are foolish enough to put this in writing - and if you have an example, please send it to - we will respect your anonymity.

Two of the many things wrong with these contracts are that they declare what will be paid for work and that they demand that freelances "waive" our rights to be credited for our work and to defend its integrity. In some of the worst cases, having thus grabbed the right to change work, clients then demand that the freelance "indemnify" them against the costs of any court case caused by the changes. Some of the things we want are a right in law to fair remuneration and a list of contract clauses that are automatically deemed unfair. We want unions such as the NUJ to have the right to negotiate minimum terms collectively. And we want unions to have the right to bring cases over unfair contracts, because freelances are so often afraid to bring cases in their own names for fear of never working for that client again.

Mike introduced Tim Clement-Jones by noting that he had spoken to dozens of Parliamentarians about authors' rights and all had at some point asked "and what does Tim think?"

Tim, Lord Clement-Jones

Tim, Lord Clement-Jones

Tim noted that his party's election policy document on "the creative industries" included a commitment to review the law on unfair contracts. "Too often", he said, creators "are presented with 'take it or leave it' contracts." We are "in a particularly weak position when negotiating with the very big battalions?- not only the big US players but our own BBC." Advice from lawyers "is pretty unaffordable?- hundreds of pounds an hour to get advice on a contract which is important to you" but not worth that much by itself.

"The right of attribution can be waived," he went on, "so that you can't even say that it's your work?- it's effectively that of the entity to which you've assigned the copyright.

We need to learn from the experience of other countries and learn from the best of what they have to offer. Could the doctrine of "undue influence" be applied when one party is in a dominant position?

Could we enact a right to fair remuneration - it works in Germany? The "moral rights" to identification and integrity are unwaivable in France Germany? - why not in UK law? These issues, Tim noted, affect many more people than those of us who want to earn a living from word, images and sounds: "all the internet plaforms like Flickr have terms which are absolutely standard and deprive the creator of rights."

So what is to be done? Perhaps a Private Member's Bill could be presented as part of "a really serious campaign in the course of this parliament." Tim also raised the possibility of a Parliamentary Inquiry. It could start by asking: "How can we meet the challenge of a thriving creative economy when the scales are so heavily weighted against creators?"

Stephen Doughty MP

Stephen Doughty MP

Stephen Doughty immediately picked up on this: he has previously worked with Ian Wright MP, who had just been selected as Chair of the Business, Innovation and Skills Committee, which could possibly conduct such an inquiry.

Stephen has worked with the Musician's Union and regularly meets with writers and musicians and photographers working at BBC Cardiff. "For me," he said, "these concerns boil down to an imbalance of power which currently exists in these relationships." The Labour Party would be busy?- not least with the Trade Union Bill launched that week: but Stephen would be keen to hear more from us on this issue.

Last modified: 20 Aug 2015 - © 2015 contributors
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