Solving The Out-of-Print Dilemma

December 2, 1998
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Literary agents Richard Curtis and Donald Maass provide insights on E-rights for Authorlink writers

Solving The Out-of-Print Dilemma

by Richard Curtis and Donald Maass

August 1998

Introduction to the E-rights Topic:

As you are undoubtedly aware, there have been some exciting developments in electronic publishing technology, and they are going to change if not revolutionize every aspect of the business. As your own interests will be affected we want to describe these briefly to you, to make some recommendations and sound some alarms.

Print on demand. Publishers, distributors, and booksellers now have the capability to print economically single copies of a book upon request by a consumer. Online sale of books. Electronic versions of books may be ordered directly from publishers or from companies like barnesandnoble.com, to be read on handheld electronic reading devices known as e-books. Though these devices are still expensive and certain technical problems remain, there is no question that the price will come down and the quality will go up, and portable e-books will eventually win consumer acceptance.

The good news for authors is that these developments will enable them to reach larger audiences for their work, and to earn more royalties. But the bad news more than outweighs the good.

Because electronic versions of your book, unlike print-on-paper versions, never go out of print, publishers have begun to take the position that even after there are no hard copies available in stores or warehouses, your book is still, technically, in print. Why? Because it is digitally stored in the memory of your publisher’s computer, available for printing your book on demand or transmitting it online to consumers.

This means that when you believe your book is out of print (in the traditional sense of the term), your publisher may refuse to revert your rights to you. Under current copyright law, that means that your publisher will be entitled to keep your book exclusively until seventy years after your death.

What is worse, publishers are beginning to insist on those same interpretations of “in print” and “out of print” when you sell them a new work. To put it plainly, that means you must sell it to them forever.

Perhaps they will actually exploit your book aggressively and earn good royalties for you. But if they don’t, you’re out of luck. You will never be able to recover the rights to that book.

There’s something else you should know. Publishers entering the electronic book field are offering authors a traditional royalty, around 10% or 15%. Such royalties make sense for books printed on paper because of the expenses incurred by conventional publishers such as paper, printing, production, warehousing, and distribution. But the costs of storing your book on a disk and fulfilling an electronic order for it are negligible, and it is certainly not out of line for authors to be thinking of far higher royalty percentages.

Author and agent organizations are awakening to these threats and developing strategies for combating them. Among those strategies are: limiting publishers to a term of years when they acquire new books; requiring a minimum annual royalty if a book’s earning drop below a certain dollar figure; and contesting publishers’ expanded definition of “in print”.

How can authors protect themselves?

First, by raising the consciousness of all authors about this threat to their interests. Forward this e-mail to every author and author group you know.

Second, by raising the consciousness of editors, who may not be aware of, or may not be comfortable with, their company’s policies or the implications of those policies.

Third, by supporting those publishers that are flexible and negotiable about their definitions of “in print” and “out of print” and about royalties payable on electronic versions of books.

Finally, by supporting efforts of author and agent organizations to promote author-friendly approaches to the in-print, out-of-print and the electronic royalties issues.

When you or your agent negotiate your next book deal, you may be given a take-it-or-leave-it ultimatum by the publisher that it expects to acquire rights in perpetuity. You will have to decide whether you wish to accept those terms or risk that your book will go unsold. Individual authors or agents may not be in a position to resist such demands. Only the collective actions of a united author and agent community will overcome such pressure.

For this reason – because this is no less than a matter of survival – we urge you to do all you can to fight the takeover of your most precious asset: your copyright.

 

RICHARD CURTIS

SOLVING

 

THE OUT-OF-PRINT DILEMMA

 

by Richard Curtis and Donald Maass

Like an express train track brought to some sleepy backwater town, two exciting technological breakthroughs announced this past summer caught the publishing industry almost completely unprepared for the future. Confronted with print-on-demand—a means of inexpensively printing single copies of books for the consumer—and electronic books—portable reading devices for displaying text—agents, authors, editors, and booksellers scrambled furiously to understand the implications for their business. Those implications are profound.

Both technologies depend on the nearly miraculous capabilities of computers to store huge amounts of text in the memory banks of disks. Though they differ in that print-on-demand is paper-based, whereas electronic books are purely digital, the underlying assumption is that whoever owns the rights to the text has the exclusive right to keep the work in print for as long as copyright laws permit.

In the good old – pre-1998 – days, a book could be declared out of print when copies printed on paper were no longer on sale or in inventory. The new media have consigned that definition to ancient history, for publishers can now declare a book in print as long as it is “available for display” – meaning, it is stored in a computer memory. And indeed, such language has begun to appear in the contract boilerplate of many publishers.

What are authors and agents to make of this? Our first reaction may be, Terrific, our books will reach new markets and be available to readers who might otherwise be able to find them only in libraries or second-hand book shops. And indeed it is terrific, as long as such exploitation generates sufficient royalties to make it worth depositing the checks.

If, however, it means sales you can count on the fingers of one hand, then the retention of rights by publishers becomes a form of bondage. After all, the text of a book is stored as easily in an author’s computer as it is in a publisher’s, and the author is just as capable of exploiting single-copy or electronic book rights as a publisher.

At what point, then, should a publisher relinquish its ownership of rights? Obviously, quantity of copies in inventory has become instantly obsolete when it comes to setting guidelines. Tomorrow’s publishing contract must balance two opposing, but not mutually exclusive interests: 1) the desirability of keeping a work available to the public; and 2) the author’s right to control trade publication rights, especially the ability to recover such rights when a publisher is no longer actively exploiting them.

In the absence of any clearly emerging industry standard on this conflict – indeed, because publishers, who have always dragged their heels over reversion requests anyway, now have strategic reasons to hold onto rights – the authors of this article urge copyright owners to demand a new definition of “In Print” based either on the amount of royalties a book generates or on a fixed period of time.

Negotiations with major publishing conglomerates on the issue of out-of-print definitions, in light of the advent of on-demand printing technology, so far have yielded only modest concessions to the interests of authors. That is not surprising. Leaving existing contract definitions in place benefits publishers.

Indeed, as of this writing many agents report receiving no concessions at all. For much of this past summer many publishers practiced delaying tactics in dealing with agents’ requests for new language, on the ground that the on-demand technology is too new. This stalling occurred even while some were busy making arrangements for on-demand orders to be fulfilled by book distributors.

Where discussion has taken place, publishers have largely defended their entrenched position by claiming that their contracts obligate them only to make the work available for sale; if it is, no matter by what means of printing, they say, then they are fulfilling their half of the contract. With a work always available, there is no need for rights ever to revert. The author’s wishes are fulfilled.

Flaws in that argument are easy to see, but difficult to counter.

The right of publication is not limited only to making a work available, of course; if that were so then every author would already be a publisher, since from the moment of creation their work is available by photocopy or, perhaps, electronic means.

Both the wording and intent of most publishing contracts, instead, is for the publisher to “print, publish and sell” the work. The distinction between availability and selling is crucial. Some publishers are currently claiming that actual sales are irrelevant. Possessing the means of printing and distribution are sufficient, they claim. Yet by that reasoning, a publisher could in theory sell zero copies of a book for the life of the author plus fifty years, and still fulfill their contractual obligation. That is obviously not what authors want, what publishers really intend, or what the copyright law was written to address.

Fortunately, some publishers have reluctantly conceded that some level of sales performance is necessary for their obligations to be fulfilled. Not much, mind you, but some. Thresholds measured by dollar volume or unit sales are the basis for most existing compromises. For instance, one major conglomerate has, in at least one instance, conceded that three hundred on-demand units is a sufficiently low level; below it, publication rights can revert.

A major independent house has agreed to the same in principle, but at even lower levels of performance. In that instance, in the event that unit sales do not total fifty copies per year in each of any three consecutive years, the author can request a reversion of rights. However, rights will then revert only if in the following year the publisher fails to bring sales above the fifty-per-year rate.

Still another major conglomerate, recently merged to behemoth size, has as of the date of this writing informed us that there will be no change to their existing out-of-print language at all. Interestingly, the contract of one division of this conglomerate already calls for an annual sale of 100 copies and stock of 50 copies; below that level, rights can revert. The contract issued by still another division of this giant already provides that with respect to electronic editions, cumulative sales over two successive royalty periods must exceed $750 (or in some cases $1000) for the work to be deemed in print. Evidently the principle of minimum sales levels applies to bytes but not to bindings.

At any rate, the giant does not speak with one voice. That may change, though, and possibly for the better. There is word that this conglomerate is preparing a unified contract for all its divisions, and there are even hints that the new contract will include an enlightened and author-friendly definition of in print.

Such a development would be welcome, but until an industry standard emerges the authors of this article strongly suggest that AAR members not accept any contract which does not, in some way, address the reality of on-demand printing and limit its impact on author’s rights. Failure to do so promotes a dangerous erosion of the intent of the copyright law.

More information can be found on Curtis and Maass's site, http://www.e-rights.com

 

 

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