In the unlikely event of any claim, action, or proceeding based on an alleged violation of any of these warranties [against defamatory material], we shall have the right to defend the same through counsel of our own choosing. The Author(s) agree to pay all resulting costs and damages…Read that again. You agree that, should someone claim to have been defamed by your work, the press shall decide whether or not to defend against the alleged violation. It is free to capitulate, pay the claim, and send you the bill for both the claim and the press’s costs. You hope maybe they would not, but you might also think they’d be crazy not to. Their editors, copy-editors, and libel lawyers may have reviewed and accepted what they published of yours, but somehow they take no responsibility; all the risk is yours.
In trade publishing, the risk of actions for defamation is just as serious, but trade contracts I see generally deal with allocation of losses arising from “a breach” (not an “alleged violation”) of a warranty. They look to prior legal review and negotiations between publisher and author as the way to prevent such breaches. They make allowance for claims that are “groundless, vexatious, or malicious.” That is, trade publishers worry about defamation claims too, and they are not about to throw away their money for your irresponsibility. But in general trade book contracts do not repudiate a publisher’s responsibilities the way academic press contracts routinely seem to.
Consider moral rights. In Canadian law, moral rights insure authors' rights to be identified as the author of their work (or to be anonymous, if they prefer), and to protect their work from changes that are prejudicial to an author's honour or reputation. That doesn't seem like much for an academic publisher to accept Yet with surprising frequency academic presses request, with surprising frequency, that their authors waive moral rights. I've never seen that in a Canadian trade book contract (thought indeed some American branch plants seek to expunge moral rights because it does not exist in the same form in American law).
Neither of these issues is about money. Professors – and unestablished, aspiring scholars even more - shouldn’t have to hang themselves out to dry just to get published. Publishing can be more civilized and collegial than this. But somehow that tradition seems to have gone extinct in academic press contracting.
You would think this was something academics could change if they put their minds to it. CAUT and all its lawyers might take an interest … but then mostly CAUT is about undermining intellectual property these days. So maybe it’s awkward for them.
(The moral rights paragraph was added May 13, 2015.)