Everyone makes mistakes, right?
Something that all small businesses need to be aware of is the propensity of bigger companies to try to rip them off. I know that sounds rather negative, not to say sweeping, but it's a fact. And yes, whilst it's true that sometimes the near rip-off is inadvertent, I can't help but notice that all such inadvertencies, without exception, favour the company that has made the "mistake".
I think there are several reasons for this, but first, let me clarify what I am referring to. Clearly, in this context I am regarding consultancies like mine as small companies, which is what they are. I am also including authors under that umbrella as well. I know that authors, especially casual ones, may not see themselves in that light, and more's the pity. If they did, if they acted as professionally in that sphere as they undoubtedly do in their day jobs, all of us who write, though not entirely for a living, would benefit.
Types of rip-off
I've identified four kinds of rip-off. Perhaps there is a modicum of unfairness about the term "rip-off", as it may indeed be unintentional, but it does reflect the indignance I feel about the phenomenon. As someone who works quite hard, I feel somewhat aggrieved when someone else tries to take away from me the fruits of my labour. Wouldn't you? Here are the types of rip-off I've categorised.
The competing works clause
This is the clause in publishing contracts which states that the author won't produce any other work which could adversely affect the sales of the work under consideration. If you think about that from the publisher's point of view, such a clause is not merely reasonable, it is sensible. You can imagine a situation in which, in order to hedge his bets, an author had what was essentially the same book published by twenty different companies. Each would earn a pittance because of having to share the potential market with nineteen other companies, but the author would probably do very nicely out of it, in the short term at least. In the long run, some readers would stop purchasing his books after buying the same book twice under the impression that the two books were different from each other, and no publisher would touch him ever again. But he might not care about that if, like Keynes, he took the view that in the long run we're all dead.
So the competing works clause is a sensible one, until it is applied in a non-sensible manner. The difficulty arises, as with another type of rip-off I'll consider in a moment, when the author actually makes a living from producing competing works. What do I mean?
Obviously, any author would be ill-advised to have a book published, and then do anything which could affect the sales of that book. But if you actually work in that field, you cannot help but do so. For example, if you're a teacher of ICT, and you write a book about how to teach ICT, any of the materials you produce as part of your work, or publish on your website if you have one, could be regarded as a competing work. If you were to take the competing works clause at face value, it would mean that you couldn't continue to do your job. It is, in effect, a restraint on your trade.
The difficulty is not insurmountable, it just takes some rather tedious negotiating. But the fact that the clause is routinely in all educational publishers' contracts leads me to the conclusion that most would-be authors don't really care that much. If they did, perhaps such clauses would be written to take account of the author's real-life situation. In fact, I have only ever been presented with one contract that approached the issue sensibly and fairly. Don't authors read their contracts before signing them?
What's mine is mine, and what's yours is mine
Actually, I suspect not, judging from conversations I've had with both authors and other consultants. One of the standard clauses in contracts I'm asked to sign as a consultant is the Intellectual Property clause, which usually states something to the effect that anything I produce as part of the work I undertake for the client belongs to the client.
Again, on one level that's fair enough. After all, they're paying for it. Or are they? I've been presented with a contract containing such a clause after I have completed the work using materials I have developed over the years. True, that sequence of events has only happened to me once, and I refused to sign the contract until the offending clause had been removed. But when I spoke to a couple of other consultants about this sort of thing, they told me that they never bothered to read the contracts they were presented with. What? That strikes me as somewhat ill-advised, given that I was recently asked to sign a contract which contains a clause stating that I will indemnify the client against legal action, but without specifying an upper limit. Yet I must be fairly alone in querying it because the organisation concerned has scores, possibly even hundreds, of consultants on its books. And that despite the draconian legal clause and, surprise surprise, a clause that states that they own the IP in anything I create.
Being charitable, I think the reason such clauses are not dropped from contracts is that the contracts are drawn up to define the working relationship between a company and its employees, rather than a company and any consultants it uses. In that light, the clause is eminently sensible, because you don't want one of your employees getting paid by you to develop something, and then going off and selling it to someone else. But for a consultancy which makes its living from providing such services, such a clause is, in effect, in restraint of trade. At least, notwithstanding the fact that I am not a legal expert, that's how it seems to me.
I came across another example of intellectual property theft in the terms and conditions on a website pertaining to the use of a free utility the company makes available. The terms state that anything you produce with their tool belongs to the company. That's bad enough. Even worse, it states that if you write about the tool, that work belongs to the company. That means that if I write a review of it, the review belongs to the company. If I write a report for my boss on how the tool is being used, the report belongs to the company. Now obviously, any sensible court of law would throw the case out if the company tried to enforce such a ridiculous condition, but looking at it from the other end, what small business has the time and the money to launch a copyright infringement action, and internationally to boot? It's just easier to find another utility that does the same thing but without those conditions attached. But the fact that the clause remains surely indicates that a sufficient number of people accept it to make the company not inclined to change it?
Delaying tactics
I've read recently of a disturbing trend in which companies delay paying their dues in order to help their cash flow. Now, you could regard that as prudent. I know of one organisation, for example, that prides itself on not paying a bean until the standard 30 days have elapsed after receiving an invoice, in order to retain its money as long as possible, presumably to earn interest on it. It's a funny thing to feel proud about: I feel proud about the fact that when we receive an invoice we try to pay it by return post. Our reputation for fair dealing is much more important to us than a few extra pounds of interest. Nevertheless, it is a trend in Britain today that payment times have increased by about a week, from an average of 17 days to 22 days, as reported here.
But the worst sort of culprit is the one which delays payment by an inordinate amount of time. In this article, a company is cited that not only takes about 4 months to settle payment, but also levies a 2.5% "settlement fee". What I don't understand is this: why do small business people sign contracts which have that sort of clause in the contract? Or, like the consultants and authors mentioned earlier, do they simply not bother to read the small print?
The cheque's in the post
On several occasions we've found that we haven't been paid by a client. Sometimes we get the "Oops, we must have forgotten" response. Really? Call me a cynic, but how come that was the only part of the transaction they forgot? They didn't forget to send me the commission, or the contract, or to phone me to ask how things were progressing. They only forgot to pay me. Strange, that.
The guilty parties
So who is responsible for these various kinds of attempted rip-off? Again, I apologise if that sounds too condemning, but from where I stand, whether the rip-off is intentional or unintentional, the result is the same.
Apart from the perpetrators themselves, of course, it seems to me that the people responsible for this state of affairs fall into two groups. First, those consultants, small businesses, and authors who either don't bother to read contracts properly or who think they just have to accept the first thing they're presented with. They don't, and if they didn't then I believe companies would be far less inclined to "try it on". As it stands, the big companies concerned are playing a non-zero sum game in which they stand to gain much, and lose nothing, at the smaller party's expense.
Second, there is a tendency for companies to invite teachers and other educationalists to send in their ideas and materials, to "showcase" them. Read the small print, and nine times out of ten you'll discover that the company takes ownership of the materials and reserves the right to do whatever it likes with them, including selling them without even giving credit to the originator. Yet people continue to provide these companies with the fruits of their labour.
In a sense, this is another manifestation of the first point. However, in one case I looked at recently (yesterday, in fact), a company is asking people to contribute their ideas, and there isn't even a related document called "Terms and conditions" on its website. Combined with the fact that in the UK you can't copyright your ideas, why would anyone in their right minds send in their brilliant ideas when they have no guarantee about what will be done with them? I think you would have to be supremely naive to do so.
But then, naivety on the part of the person or company providing the product or service seems to be the common thread in all of the examples I've talked about here. Let's hope that a positive outcome of the current economic situation will encourage people to value their own intellectual property, and their right to fair dealing, more highly than they appear to have done hitherto.
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