Copyright, Ebooks and the Unpredictable Future
By Emily Williams, co-chair, BISG Rights Subcommittee
Book deals were pretty simple once upon a time.
There was just the book: hardcover, paper, a creature of the educated elite, the bookshop and the library. The author was lucky if he made it past the editorial gatekeepers and he signed his work up for life of copyright, or until the book went out of print, in which case it was to all purposes dead.
Some publishers had bookish friends abroad and through correspondence or the occasional overseas trip a book would get translated and published in another country, and the publisher would kick a little money back to the author. When agents got involved they saw a new potential revenue stream in those foreign rights and the savvy ones started carving those out and keeping them for the author (over the publishers’ strenuous objections at the time).
When paperbacks took off, through lucrative deals with paperback publishers, that became another right to carve out, as did film, and book club, and serials, and audio. Some of these rights — like film – are almost never sold to publishers anymore; others — like paperback — are still included routinely in book deals but publishers have to pay for them; and still others — like audio — may be sold to the print publisher (at a price) or retained and sold separately to an independent audiobook house.
Which brings us to the question of the moment: where will ebook rights end up?
Publishers are now strenuously making the argument that ebooks are like paperbacks, a primary right, and they cannot create a publishing strategy for a title without controlling rights to both print and digital. Some agents and independent e-publishers, meanwhile, foresee a future in which ebooks are just one more right to carve out, like audiobooks, to sell to the print publisher at a price or to an independent digital house. But around the edges of debates about the old model, a new possibility is arising.
What if ebooks force a wholesale re-thinking of the contract for books in all shapes and forms?
The argument goes something like this: in entering the ebook world we’re moving from the most stable and mature market for creative works that exists — the 500-year-old print book market — into the vast unknown. It makes no sense to demand that an author turn over rights to the publisher for the rest of his or her life plus 70 years when no one can tell what the market might look like 10 or 20 years from now. On the other hand, if the agent is too aggressive limiting what rights are granted with an eye to what might happen in the future, the publisher has no room to experiment and innovate.
One approach is a generous rights grant limited by clauses that force a renegotiation after a few years or in the event of a general market shift, and many agents are now doing this. But this approach fails to contemplate the possibility that ebooks may provoke severe disruption in the market causing publishers and booksellers to crack under the pressure of disappearing margins, remaking the book world in the ebook’s image, on an altogether less physical plane, and leaving the path a book takes from author to reader unalterably changed.
This is the world the revolutionaries dare to contemplate, and in anticipation they have written a new kind of book contract.
Rethinking Contracts and Copyrights
Ebook publishers have unsurprisingly been in the vanguard of offering new terms to authors, often as a way of competing against the big established print houses. RosettaBooks, under agent Arthur Klebanoff, and the new Diversion Books, established by agent Scott Waxman, both offer 3-5 year contracts based on the proven principle that the future is hard to predict and flexibility for authors is key.
Richard Nash, the former publisher of print indie Soft Skull who is now setting up Cursor, a new publisher proposing an innovative crowd-sourced digital+print model, has been more vocal about overturning the copyright status quo. In a manifesto on his blog Nash laid out his own version of the change principle: ”The publishing industry is in a state of turmoil. New sales channels are arising, new formats, new terms of sale. Authors deserve the chance to renegotiate as the industry evolves.”
Nash thus offers Cursor authors 3-year renewable contracts, in return for “a fairly broad basket of rights in the license…in audio, in English-language outside the US, in magazine republication, in translation”.
In this model, authors stop carving out rights. They hand almost everything over to the publishers and give them maximum flexibility to experiment with format, pricing, sampling, enhancements, and territory – BUT, for a very limited time. At the end of those 3-5 years, everyone reassesses.
If the publisher has done an outstanding job and turned the book into a bestseller, they might now have to cough up more royalties. If the publisher has failed to sell the book or exploit some of the rights they were ceded, the author may continue with the house on a more limited basis or may withdraw the book altogether and take it elsewhere. The author gets far more flexibility and control over the book’s fate than was ever possible with a life-of-copyright contract, but has to accept a full partnership role: the publisher will no longer pay a significant advance or assume the lion’s share of the financial risk.
A switch to this kind of contract would upend the current business model in publishing and force the legacy businesses into a massive reorganization, probably involving no small degree of shrinkage. Is this the way forward?
The answer depends on your understanding of the digital transition we’re in the midst of. If ebooks are like paperbacks, a new format that will cause some disruption but ultimately expand readership and learn to coexist peacefully with previous formats, then the old business model with its grip on life-of-copyright may well survive.
If, on the other hand, today’s ebooks are the harbinger of an all-digital future that will crack the walls of print and bring them crumbling down, well in that case…the revolutionaries are at the gate.
Emily Williams is co-chair of the BISG Rights Subcommittee and a former literary scout who currently works as an independent publishing consultant.