"Oh, the book itself turned out fine, but the bloody publisher's done no promotion, no-one's bought it, and it hasn't earned me a penny." How many times has one heard such a sentiment, and then merely shared with its sufferer a fatalistic shrug?

It seems to be generally assumed that if a publisher fails to promote a book decently, or at all, there is little its author can do but fret, moan, and at their peril, complain. The common understanding is that under their agreements, publishers have no such enforceable obligations, that is, no obligations which a court would order on an author's behalf. This depressing conclusion was formally articulated by specialist literary lawyer Nicola Solomon in her article Incompetent Publishers in The Author of Summer 1991 (and see postscript):

"The most common complaints include... no evidence of marketing, advertising or approaches to retail outlets other than listing in the publisher's catalogue... What can an author do, other than grumble, to try to correct these complaints?... Lack of effective distribution, selling and advertising are even more difficult to prove since there is no absolute standard. The publisher's expert knowledge should make it best placed to make the decisions taking into account cost benefit effectiveness. A court would be unlikely to second guess this process by implying a term, say, that the book should have been advertised in Underground stations... These types of carelessness or incompetence are unlikely to amount to a fundamental breach of the contract. They are matters of detail, not the central purpose of the contract."

A frustrated author might immediately take issue and argue that the publicising of their work, the airing of their ideas, is the central purpose of their publishing contract, and that all else - their earning of royalties, the enhancement of their reputation, even the printing of their books (their ideas could be broadcast by radio) - is the detail, but the law, with its hard insistence on cash-value would doubtless find it difficult to accommodate such idealism. However, idealism aside, recent developments do suggest that Solomon's defeatism may no longer be warranted. In his 1990 Court of Appeal judgment in my case against Oxford, Nourse LJ elegantly enshrined in law some commonsense axioms:

"The functions of an author and his publisher are quite distinct, a state of affairs which has been humorously expressed by the saying that each regards the other as a necessary evil. The function of the author is to produce the raw material of a script. The function of the publisher is to present and promote that material in such a way that it will be as widely acquired by the reading public as is practicable. A [publishing] contract... simply requires the publisher to perform his distinct function, leaving to him the decision of all questions of presentation and promotion, subject only to a requirement that he must act in good faith towards the author and not so as to detract from the purpose of the contract."

As all understand, once a work's text is settled, there is much more to its publication than merely getting it typeset and printed as a book, steps which enterprising authors can in any case nowadays take for themselves. It is the publicising of the book that for an individual is the rub, the distributing and marketing of it. Once the judges hearing my appeal had apparently been persuaded on the question of my breached contract, their attention turned to its appropriate remedy. My most optimistic target was 'specific performance', that is, a court order that OUP should print the originally planned 2,000 run of my book Making Names, with, I imagined, either the project then being restored to its commissioning editor, who was continuing to proclaim the book's merits and who would then have had a double-motive of vindication, or those historically unique copies then being handed over to me for easy private sale.

I recited in court an Oxford dictionary definition of the verb "to publish" which went "to prepare and issue copies of a book for sale, to make it generally accessible or available, to place it before the public", thinking that in seeking only the first third of this definition's execution I would be yielding to the court's understandable reluctance to enforce the prolonging of a relationship which had manifestly turned sour. However, leading the court, Lord Justice Mustill quickly retorted: "but in seeking only the bits of the contract you want, you are gelding it, emasculating it; this would not be full publication as originally envisaged", an unanswerably logical point to which I immediately bowed. In the end I was awarded pecuniary damages rather than specific performance.

But if an author cannot in law so 'geld' a contract, then surely neither can a publisher. Preparing and printing a book but then not placing it before the public or making it generally available is only half-fulfilling or third-fulfilling the definition and its contract, the opening clause of which will typically go: "The publisher at his own risk and expense will publish the work entitled..." (my italics). A publisher accused of negligence of a book's promotion might here rely on another clause typical of such contracts: "the publisher will have sole control of production, advertising, price and terms of sale of the work..." and on the Publishers'Association Code which confirms that "the final responsibility for decisions on the design, promotion and marketing of a book is normally vested in the publisher... [although] it should keep the author informed of them."

Of course, no-one is going to argue, and no court is going to infer from such a clause, that a publisher has any particular promotional obligation, such as Solomon's suggested Underground station poster-campaign, but a general obligation is certainly thereby implied. While a publisher can legitimately argue that it has the right to promote a book as it sees fit, a court must also conclude that the publisher is under an obligation to publicise the book somehow, and that if it can be shown that it has not promoted or distributed the book at all, then it is in breach of its agreement. The very mention in the contract of activities like "advertising", "promotion" and "marketing" implies the publisher's undertaking of them.

This, or something very like this, has recently been demonstrated in the case of Kent vs. Valeforce Associates (Wandsworth County Court, May 1999), where the judge's predominant grounds for finding on behalf of four aggrieved authoresses that their publication had been fraudulent rather than bona fide consists in the publisher's lack of promotion of their books. Valeforce is a vanity publisher, and the judgment seems to be based more on the misrepresentations made in its prospectus rather than on its breach of contract, so 'proper' publishers will doubtless argue that the judgment sets no kind of precedent for them. However, the grim detail of the stories (the lack of any distribution of the books to shops, the absence of any advertising, the failure to contact even local newspapers or TV and radio stations) exactly echo the sort of complaints one routinely hears from conventionally-published authors, as listed above by Solomon, and it is not immediately obvious why the vanity aspect should in law affect the publisher's obligations one way or the other. Conning a year's hard work from an author on the strength of promised, contracted promotion which then does not materialise does not seem very different from conning savings from retired folk with unpublished memoirs.

It will be argued that in 'proper' publishing, where the publisher risks the initial investment, usually including an author's advance, the logic of the vanity situation is reversed: it is not in a publisher's financial interest to commission a book and then abandon it. But aside of sheer inefficiency, which is common enough, there are plenty 'proper' situations which turn perverse. A friend of mine, on the strength of a small advance and a promise of large sales, accepted a commission for a series of ELT coursebooks for the expanding Japanese market. She spent a year writing the course, but by the time she returned with it, her publisher had been taken over by an American competitor which instead wanted to push its own rival version, leaving her books printed but then deliberately unpromoted, and her year's work largely unrewarded. In a letter to the TLS about OUP (9th April), Patrick Thomas has indicated some of the perverse reasons why academic publishers artificially expand their lists with bogus monographs (see postscripts to The War for Jericho. While in both my own legal victory over Oxford and the 1998 case derived from it, Myers vs. Macmillan, ample perversion was provided by the publishers' repeated switchings of staff, "internal power-struggles" and suchlike.

In practice, the difficulty for the author is always going to be one of proving any alleged negligence, failure to promote, bad faith or whatever, but the accelerating merry-go-round of mergers and the resulting staff turnover at the root of many of the perverse situations can also provide unexpected allies. In 1995 the poet Christopher Pilling, whose collection In the Pink had been axed by Reed, won a breach-of-contract action on the slenderest of evidence, thanks to his editor Christopher Sinclair-Stevenson, whose imprint Reed had taken over, doing the decent thing and acting as his witness (see Pilling vs. Reed). Publishers should be advised that their assumption that failure to promote is non-actionable may no longer be safe.