How Publishers Seized E-Rights High Ground
In 1989 Ben Bova published a science fiction novel entitled Cyberbooks describing an electronic reading device almost identical to the Kindle: “…A gray oblong box about five inches by nine and less than an inch thick. Its front was almost entirely a dark display screen. There was a row of fingertip-sized touchpads beneath the screen.”
Bova’s gadget was very much like the one that had flashed into my mind the moment I laid eyes on a CD-ROM disc in the late 1980s. “What if,” I speculated, “you could insert CD-ROMs containing book texts into a portable light-box and read them on it?”
My concept was laughably crude, for the means of delivering those texts, the Internet, had not yet swept into dominance over worldwide communications. So, I was in the right church but the wrong pew. Still, the vision gripped me and I began to think about the practical aspects of digital technology.
I wasn’t the only one. One day around that time I received a Putnam contract and came across language I had never seen: the publisher had reserved something called “display” rights. I called Phyllis Grann, the head of the company, and asked her what it meant. She said she’d gone to an electronics show and seen the Franklin Bookman, a portable device that contained an electronic edition of the Bible. “I want that,” she told me.
That was the first shot fired by publishers in the battle to seize the e-rights high ground, and it occasioned the article I posted in the Association of Authors’ Representatives Newsletter in spring of 1993. Rereading it, it’s clear that I had as good a handle on what was to come as it was possible given how little we knew at that time. When I served as president of AAR in the mid-‘90s I tried to alert agents to the coming revolution and implement a few safeguards such as a new definition of “out of print,” for the new technology offered an opportunity to draw a precise line below which a publisher’s rights were terminable.
Unfortunately, most agents were unable to grasp the implications of the new technology, but who can blame them? The publishers couldn’t either. Even when the first practical e-reader, the Rocket Book, was introduced in 1998, after a flurry of end-of-publishing-as-we-know-it hoopla the book industry continued doing business as usual, and e-books were scorned as flash-in-the-pan gadgets like that other dumb portable invention, the Walkman, precursor of the iPod. But I had no sooner watched a demo of the Rocket Book than I determined to be present at the creation as it were, and I started an e-book company the next year. Because publishers weren’t gazing into the crystal ball, I was able to recover the rights to many out of print books, and I urged fellow agents to follow suit. I knew that window for recovery of authors’ backlists would eventually close. Which it did.
It would take fifteen years from publication of the AAR article for digital technology to be refined and the publishing industry to embrace digital books. Then the Kindle happened and, at last, everybody got it.
A Look Back: Have You Missed the Electronic Revolution?
by Richard Curtis
AAR Newsletter, Spring 1993
By now it’s apparent to even the most myopic of us that a revolution is in progress in the way information is produced and disseminated. Though few futurists believe that books made out of paper will disappear, the new electronic media offer dramatic and exciting alternatives. Information can be packaged in far more graphic, stimulating and entertaining ways, stored more compactly and distributed more cheaply and efficiently. A single compact disk about 5 inches in diameter – a little wider than a mass market paperback– can hold some 250,000 pages of text. And instead of the dreadful inefficient way that conventional books are distributed, the contents of that CD can be transmitted over telephone lines directly to the user. Book publishers, realizing they cannot compete against these overwhelming features, have opted to go electronic themselves and are busily acquiring, developing, or adapting properties for multimedia and interactive software applications. What role will literary agents play in this brave new world? Or have we already missed the boat? You’ll be relieved to know that none of us has. Before the electronic books revolution can truly take hold, three major problems must be solved.
1. Technology. As incredible as the technological advances are, numerous hurdles have to be leaped. For example, despite the prodigious storage capacity of compact disks, the challenge of putting full-motion video on disks is far from being solved –that’s a feature that will become highly desirable in the emerging media.
2. Standards. Consumers are faced with a bewildering array of choices among “platforms” – operating systems – many of which are incompatible. Until the computer industry experiences a shakeout similar to the one that happened in VCRs – remember Beta system versus VHS? – giving us a single predominant standard usable on all systems, the long-predicted gold rush will not materialize so fast.
3. Copyright. The new technology has created conditions never addressed by copyright law. The ease with which electronically transmitted information can be copied – and misappropriated– will be the single greatest challenge for the emerging industry. Until our laws catch up with our hardware and software, we will experience years of confusion and litigation, while many copyright owners wait on the sidelines for the smoke to clear. Clearly, there is time before the turmoil subsides and the industry homogenizes. When it does, there will be lots of business for all of us.
What can we do until then?
First and foremost, educate yourself. How do Macintosh’s platform and Philips’ CD-I system differ? How does the calculation of royalties on electronic properties differ from that on traditional books? Are books we handle adaptable to the new media? Who’s buying what? Which rights should we reserve, and will we know what to do with them? What prices and terms should we be asking? Do we have to purchase special hardware and software? Do we have to learn a new high-tech language to speak electronics? Study those articles in Publishers Weekly about electronic rights that you used to skip, subscribe to some publications like New Media to get a feel for development.
Second, start networking. Go to electronics shows, make appointments with exhibitors, study the literature, ask questions, and go to lunch with the electronic media editors that are becoming a mainstay of every publishing house.
Third, identify any properties you control, such as reference books, with high potential for adaptation. Which, if any, electronic rights have you granted to the publisher? When you negotiate new contracts, think electronically– review every book’s potential for adaptation to the new media. Most important, consider reserving all electronic rights in negotiations unless publishers make it worth your while to relinquish them. The critical issue of the next decade: whether those rights are simply an extension of every publisher’s print rights, or rather a discrete and distinctive body of rights similar to motion picture and television that authors and agents fight to retain. Also, because so much about the new media is still up in the air, when negotiating deals in this area many agents specify the platform for which the adaptation is intended, limiting the term to recover the rights at a future time when many of today’s unanswered questions have been resolved.
Finally, watch out for the movie and television companies. As they awaken to the rich potential of electronic rights, they will undoubtedly begin demanding them as part of their rights package, whether they intend to use them or not. In the next few years we can expect publishers, producers, and others to start grabbing everything that isn’t nailed down unless we arm ourselves with information about this fantastic new world.
AAR Newsletter, Spring 1993, reprinted by permission of the Association of Authors’ Representatives.