C for Coincidence? Or Conspiracy?
The Department of Justice’s suit against publishers and Apple introduced terms like “Collusion” and “Conspiracy” into the discourse of people whose legal vocabulary seldom ventures beyond the language of warranty and option clauses. The words are jarring enough to rattle teeth in the hushed corridors of one of the most civilized of professions.
And yet book publishers themselves are not wholly innocent of the practices that attracted the attention of the Justice Department. The scale of their malfeasances may be infinitely smaller (a Wall Street Journal writer described publishers as “plankton”) and the issues more prosaic, but there are occasions when “C” might stand for something more ominous than Coincidence.
Did you ever wonder for example where it is written that the “standard” hardcover royalty for a trade book is 10% of the retail price on the first 5,000 copies, 12 1/2% on the next 5,000, and 15% on all copies sold thereafter? Why the “standard” e-book royalty offered by all major American publisher is 25% of net receipts? Why the “standard” division of territories in the English-speaking publishing market is US and Canada for American publishers and the United Kingdom for British publishers? Is it not wonderful how the same terms just seem to pop up on everybody’s boilerplate, and if one publisher changes its terms, the changes magically spring up overnight on everybody else’s, like mushrooms?
Of course, we recognize that boilerplate is made to be negotiated, and though almost all major publishers seem to be marching in lockstep, we know that many of their standard terms are flexible if you ask and if you have the clout to alter them. Nevertheless, a conspiracy theorist with a taste for the flesh of publishers (stringy fare at best) might be tempted to go after some if he thought a cabal was afoot.
In fact this very thing happened in 1974 when our old friend the United States Department of Justice brought suit again against twenty-one American publishers for their tacit consent to what appeared to be an unwritten treaty among British publishers to carve up the English-speaking book distribution market.
As the University of Chicago’s Library Quarterly explains it, “Claiming a group of about seventy countries as their ‘traditional market,’ signatories agreed to neither buy nor sell publication and distribution rights to American publishers unless the rights for that market remained intact in British hands. In effect, the worldwide English language book market became divided into two spheres, the British and the American. While this division worked reasonably well for many years, by the 1970s the system was crumbling under the pressure of worldwide changes in book production, distribution, and consumption.”
As a result of the DoJ’s antitrust suit, the so-called Traditional Market Agreement was ended.
Or was it? Though the Consent Decree will be found in the legal archive of the 21 American publishers that signed it, if you negotiate a book deal with an American publisher today and ask for the traditional territory, I guarantee it will be identical to the one that prevailed until the DoJ threw a spanner in the works in 1974.
But maybe that’s just a Coincidence.