The Digital Devil's In The Detail

One of the most disturbing rulings occurred this week in the court of US Judge Naomi Reice Buchwald and relates to a case of copyright infringement brought by HarperCollins in 2011 against Open Road in relation to the ebook publication of Jean Craighead George’s 1973 bestselling children’s book ‘Julie of the Wolves’.

The judge ruled that the original contract which was signed in 1971 differed to that of the 2001 ruling in Rosetta vs Random House and clearly granted HarperCollins exclusive right to licence electronic publications as then in 1973 and into the future. They still needed George’s permission to make any electronic rendition but they retained the exclusive licence right irrespective of whether George agreed or not. In this case George did not accept the terms and went to Open Road. George sadly passed away in 2012.

The actual wording difference between to Random House and HarperCollins contracts with respect to future technology and electronic rights appears to be clear to the judge and focuses on ‘in the future’. It has probably sent every trade house into a legal frenzy of activity on checking their digital clauses in their key and boilerplate contracts. As to whether this was the standard boilerplate contract term in the day, or a specific one honed for this contract, only the parties know. However, it would appear a very generous open ended clause for the agent to accept in those days and at a time when digital was clearly not even much more than a distant dream.

A contract is a contract and a ruling such as this brings both clarity for some and ambiguity to others. It however raises once again the question of the fairness and equity of contracts and whether they should be in perpetuity, tie both physical and digital to sales and inventory and can be so open as to cover anything and everything into the future. Some would suggest that you acquire as much rights as you can and use as little as is necessary. Today some would claim that excessive rights are demanded and that some subsidiary rights are not being fully exploited as a result. We have long argued that digital rights should be term based, not in perpetually and should apply on a back to back basis to both the agent and publisher contracts.  Also a pbook may not be the same as an ebook in the future, digital ‘sales’ are potentially going to become subscriptions and licences and therefore have different parameters of success and longevity. Digital may be published first with the physical having to justify print. On demand makes a mockery of inventory. It may be wise to contractually cleanly separate digital and physical and not muddy them under ‘published in any format’ catch all’s.

Whatever happens the backlist and orphan works position is probably going to get murkier before it gets clearer. Contracts that were once signed under the understanding of the day may now find themselves being dusted down to face a whole new brave world they were never really designed to cover. Governments may bring in regulated orphan ‘land grabs’ based on some due diligence, but again this doesn’t address the fundamental void of there being no rights authentication database. Books are not alone in this issue and our whole internet infrastructure would appear to be based not on validation and authentication, but on ‘catch me if you can’ and ‘safe harbour’ and take down notices.

Another Day at The Races

This weekend my wife read a friend’s self-published book on Kindle. Yes, there were a couple of typos and a couple of other mistakes one would expect a proof-reader to have picked up, but she enjoyed it and found it well constructed. Coming from a lady who selects, buys firm and then reviews and sells hundreds of titles and thousands of units every month, this is a compliment. And she suitably gave the work a review on Amazon.

When we read about the debate about self-published versus traditional published works we often hear the continued posturing over who makes the most money and also who is just destined to remain in the ‘long tail’ of books and who can make something happen just by their adoption, process and marketing clout that can go automatically into the bestseller ‘short head’ of books. It starts to beg the question, so what and are we looking at the situation and opportunity the right way? 

Today the blogs and industry continues to debate the new breed of self-publishing alternatives. The establishment viewpoint often remains the same as it ever was. It’s undeniable that money can buy a hit and that the trade also can select their winners. Some say it’s like a day at the racers and placing bets in a crowded field. Like all gambles the bets don’t always come home or deliver the odds expected of them. But there again, you wouldn’t expect to see a donkey in the Grand National, or a thoroughbred steeplechaser on the beach at Blackpool. It’s about picking the right horses for the right courses.

Too many times today we hear consultants and industry watchers who have grown up in the old world, supporting it, even when it would appear to contradict what they say about the new world. Maybe it’s more a case of saying what the client wants to hear and like many pundits on the course they keep their hands in their pockets.

Perhaps we should stop thinking and talking corporate and start thinking and talking author. The author profile is already being raised with literary festivals, writer’s conferences and even though some of the higher profile events are being corporatized, many are not. Self-publishing is just getting more authors to question whether corporate suits them best, or whether it’s the right way every time.

Much of traditional publishing is outsourced with often only the money and control remaining in-house. 

Amazon, Wattpad, Sourcebooks and many more are now starting to offer both the author services and the channel to market and publishing has to take note. 

Some publishing houses have started ‘collection boxes’ for the great unpublished. Some have bought up smaller operations who already do it. But have these forays into the unknown been token gestures, or are they genuine initiatives to harness the growing masses? Can the traditional publishers truly accommodate more, or is it inevitable that they cut to the chase and limit themselves to only backing their favourites.

Perhaps we should not be focusing on the end delivery, the published book, but on the total author relationship, development, communication and reward system. Is it good enough to pay royalties after months when others pay after weeks? Is it good enough to give someone one liners on a royalty statement and expect it not to be questioned? Is it good enough to have only one development process and approach and not offer multiple options? Is it good enough to buy and retain a wide berth of rights and only use the minimal? Are non-compete and first nation contract clauses the way to go? 

There are many more questions and some are applicable to some and not to others, but the questions are increasingly more about the needs of the author and consumer and less about the maintenance of the corporate machine.    

Retaining Author Relationships In A Transparent World

Technology and communications are changing not only our culture but also our relationships with others. It is not just about how and what we communicate but also about the transparency and openness of the communication. Where once we could not see, we now can and this can start to question and even undermine the trust and inter-dependency in relationships we once took for granted.  

We can all now see our financial transactions and business is now viewable in real time 24x7. Even our location, what we are doing, what we like and dislike can be tracked and visible to many. There is often no hiding place unless you are switched off. As recently witnesses in the news, even governments are exposed and they need to maintain their trusted relationships within an increasingly hostile environment.

When we look at the book business and it value and supply chains, this increased openness and transparency is opening up both new opportunities and also starting to question relationships and process we once took as given.  Increasingly, we are all questioning the value that others add and are now looking to technology and information to support these. These changes are changing relationships and what we expect from them and potentially exposing that thorny issue of trust.

We can no longer deny the rise in self-publishing. What was once seen as the slush pie and vanity publishing is fast becoming respectable and a vibrant publishing market in its own right. As this door widens it could impact on the traditional publishing chain and question what rights are traded, the terms and even the commercial relationships themselves. The process between rights and royalties may have been to many authors something that just happened, but as the likes of Amazon’s KDP and Kobo’s publishing and other services start to show live sales being accrued along with earnings, what once was a mystery to many authors is starting to become transparent. This shift is significant as it starts to force new rules on all and merely sticking to the old ways may in fact end up driving more to the new ones.

We have long argued that physical and digital rights should be separated. We accept that the two go hand in hand and that they are different to other rights such as Film and subsidiary rights. However, the terms under which they are licenced should be separated. Right reversals have a defined physical trigger in most contracts and this works today. However in a digital content world this can easily become perpetual licence as the inventory never goes out of print. If the two are joined under the same revert clause then the physical work can be locked in perpetuity irrespective of its performance. Term time licencing of digital would make sense, but these leads us to consider the information needed by the author on which to base their relationship and trust. We now have to accept a greater transparency, openness, availability of detailed information and timeliness of payments.

Of course some may say the wheel isn’t broken so it doesn’t need fixing, others may say they have a contract and that is that, but it is not about today but tomorrow and maybe it’s time for a change and one that reinforces the relationships and trust and negates the need to go for a more transparent and open deal.

What we can’t deny is that the world around us is changing and with it our approach to what we expect out of those we do business with and there is no reason to believe that should be any different for authors.