Wednesday, November 05, 2008

Content For Rent?

When we lease a commercial property we enter into and contract. The contract recognises more than anything else, that life changes over time. So we have a lease terms and we have rent review clauses and importantly, we can also have break clauses. This form of review ensures that both parties remain focused and removes much of the risk that could be experienced by both parties as markets and businesses change.

Today, the majority of publishing contracts are one offs that in principle are appended to, but are negotiated once and thereafter remain 'as is' for life.

Today we are now one short step from books never being 'out of print' and the erosion of the rights reversal opportunity that has underpinned many rights contracts. Some publishers have long wanted this perpetual tethering of the work, others have respected the contracts and the spirit into which they were entered. Irrespective, some would say that Google has, with some help, now effectively ‘driven its juggernaut’ through rights reversals, adopted orphan works and even managed to redefine ‘fair use’, if only for themselves.

It is interesting to gauge the reaction of various parties in the post Google settlement, but it is clear that we could be in a ‘sanctioned first and maybe questioned later’ mode.

So what of authors’ rights contracts moving forward? Will they, or can they, be now term based? Will, or can, a work be subject to rights reversal, or is it a case of ‘one shot only’. Is there any sense now to territorial rights and how will the likes of Google ever enforce these? If a book is published by one publisher in the US and another in the UK, who do Google respect and pay?

Next we have the great urban myth: That the electronic formats are not as inexpensive to produce and publish as many believe.

Hello! The real reason behind this is that publishers are still, in the main, running their editorial and production processes in analogue. If they were digital their ability to produce digital, physical, or whatever, would be a lot cheaper. Many are still digitising physical product, or at best ‘finished typeset product’. Publishing isn’t digital, it merely distributing and selling digital product.

So should authors’ sign up to deals based on an inefficient and transient process and will poor royalty rates be revisited once the publishing process becomes efficient?

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