‘To Keep Pace With The Times’
We believe three basic changes are urgently needed:
- Time-limited contracts,
- A clause that provides for reversion of unexploited rights, and
- A specific new unchallengeable definition to replace historic “out of print” clauses that are not remotely relevant in the electronic age.
As you’ll know if you’ve been following along here, the Authors Guild’s Fair Contracts Initiative is being rolled out in intermittent releases of position papers. You can read about the campaign’s overall goals and positions here, in A Digital Picket Line: The Authors Guild Would Like Your Attention, and in Writers And Their Business: Don’t Assume It’s All For One.
This week, another plank of the author-advocacy group’s platform is nailed into place with A Publishing Contract Should Not Be Forever.
This is so contentious an issue in the industry now that it’s one of two major aspects of the new Canelo publishing house’s approach to authors in London. There, the company has opened with 50 percent digital royalties (instead of the widely hated 25 percent) and five-year caps on contracts.
What is the standard? If you don’t know this, sit down. It’s the full term of copyright, which means the life of the author plus 70 years. That’s how long a traditional publishing house has typically expected to hold an author’s rights to his or her work.
As the Authors Guild describes it:
A publisher may go bankrupt or be bought by a conglomerate, the editors who championed the author may go on to other companies, the sales force may fail to establish the title in the marketplace and ignore it thereafter, but no matter how badly the publisher mishandles the book, the author’s agreement with the original publisher is likely to remain in effect for many decades.
Wide-Eyed And Vulnerable
Like several elements of typical publishing tradition, this may sound all but absurd to someone from another business sector encountering it for the first time. But publishing is an industry that has, over generations, grandfathered in and accommodated many practices that in 2015 look at best peculiar and at worst curiously extreme — even punitive in relation to their least expendable workers, the authors who create the raw material of the realm.
The Guild, aware of how little-known some of the industry’s protocols are among the consumer base — and keen on how closely many authors today are communicating with their readerships through social media — has begun this public pressure campaign to bring new attention to some of the conditions they feel are the least tenable for authors.
Some say readers don’t care about their authors’ working conditions.
Others think that getting some daylight on these issues could help change them.
There’s a particular interest in the Authors Guild administration in supporting writers who may not be agented. Agents are in many cases able to adjust what the Guild says is more than 100 elements of a standard contract. That’s what negotiation by good agents can do. (For a strong series of articles on good agenting, I recommend the pieces being written by Kristin Nelson.) By contrast, unrepresented writers won’t know what to ask to have changed in a contract, let alone how to negotiate those things.
The Guild’s position is that it’s insupportable for the industry to operate with contracts that could knowingly mislead any authors, most of all those who are unprotected by agents or attorneys. Can there be any defense for obfuscating such issues to take advantage of an author’s ignorance?
I’d like to point out that I’m always glad to hear from representatives of the traditional industry who may have input or feelings about the Fair Contract Initiative or any of its points. The best way to reach me is through the contact page on my site or to flag me down on Twitter (@Porter_Anderson). For various reasons of corporate and legal reality, it can be difficult for publishing companies to speak up for themselves amid criticism of the kind the Guild is mounting in its role of author advocacy. While I call this “the silence of the trads,” there are genuine business-based reasons for that lack of response in some cases. I encourage anyone who can respond from the industry about its contracts to let me know.
‘Publishers Will…Call Us Naive’
Related to the constraints under which publishers operate, the Guild’s own statement in this instance is interesting for its effort to predict what might be heard in reaction. They’re ready here with a level-headed response:
Publishers will no doubt push back and call us naive. They need to make their money back over time, we get that; publishers need to be able to meet the bottom line. But so do authors. And if a publisher is unwilling to invest in a book anymore, it doesn’t deserve to own the rights anymore. It’s clear that when publishers are the ones offering to license material they control, they typically agree to time-limited deals. Authors deserve no less.
This is a reference to one of the most frequently heard retorts from traditional interests to criticism of this kind, the suggestion that detractors just don’t understand how publishing works. That, of course, is something that cannot be said of the Authors Guild. Some of its members are among the most prominent and sophisticated players in the business.
And in an interesting alliance, the Guild is one of the parties supporting the Authors United call for an investigation of Amazon by the US Department of Justice. That complaint, in general, is supportive of the traditional publishing industry — which, of course, is the target of its Fair Contracts Initiative.
Such cross-currents of reform and resistance in publishing today can take on many nuances. Say “Amazon,” and the Guild walks over and stands by the publishers. Say “contracts” and the Guild turns around and walks away from the publishers. Lots of walking.
Is ‘Out Of Print’ Out Of Date?
In one of the easiest elements of the current position paper from the Guild for lay people to understand, the organization is decrying the use of “out of print” clauses in contract tradition. I’ll quote the Guild at some length here:
The original concept was straightforward: When a publisher fails to keep a book on the market in a profitable way, the author should get all the rights back. This is more important today than ever, since ebooks and print-on-demand make it easy for authors to republish their backlists: a recent study conducted by the British Authors’ Licensing and Collecting Society (ALCS) showed that 70% of authors who were able to reclaim their rights were able to earn more money from the work in question.
But publishers have cleverly managed to craft “out of print” clauses that make it almost impossible for authors to recapture their rights. Classic contract language states that a book is not out of print as long as it is “available for sale in any edition.” So publishers “release” the book in a print-on-demand or electronic edition that’s always available, even if few copies are actually sold. By relying on language originally intended to provide a real reversionary right, a publisher can now hold onto a book forever even if it’s not actually doing anything with it. That is not how “out of print” was supposed to work.
What’s happening here, of course, is the digital revolution. Electronic editions of content are never out of print. They may rely on no physical media whatever. An ebook, for example, may not be bought for 10 years. When someone suddenly wants a copy, no shelf space is needed and nothing is “out of print” — that ebook can be fully available, boom.
The remedy is simple: Kill the entire outmoded concept of “out of print.” Instead, the contract should define when book rights are being “inadequately exploited” and therefore available for reversion to the author when the book fails to generate a certain amount of income—say, $250-$500—in a one-year period. Using income as the yardstick, not a specific number of sales, is essential: Publishers might otherwise be able to game the clause by offering one-cent e-books the way they’ve gamed existing clauses by using e-books and print-on-demand.
I’ll leave it to you to read more of the Guild’s position paper on this group of issues.
Suffice it to say, as each of these rounds of carefully measured commentary is released, the organization hopes that more concern will build. With the Society of Authors in London seeking legislative remedies at the same time in an initiative called CREATOR contracts, it seems that a certain energy is building for reform and following its progress will be interesting both in the States and in the UK.
The Authors Guild says it this way, meanwhile, about how long a publishing house should control a writer’s material:
Diamonds may be forever, but book contracts should not be.