By Peter Ton*.
First published in ART+law newsletter issue December 2000.
IN THE NEWS
The reaction from the publishing and technology industries to the recent and striking success of Stephen King’s release of the sixty-six page novella, “Ride the Bullet”, as an internet only release has seen ranged from unilateral declarations of the “death of books” to suggestions it was merely an aberration. Although the numbers generated from the venture were impressive , 500,000 downloads at $US2.00 in two days, the reality is tempered by the fact that Stephen King is an established and successful author who has a cult following and, significantly, the support of his publishers Simon & Schuster. The critical question is whether the same, or any notable, success could be emulated by an unknown author relying on a purely cyberspace generated reputation.
E-PUBLISHERS
The tentative and unproved nature of the e-book, a literary work made available for download either for money or gratuitously, as a viable commercial commodity is demonstrated by the uncertainty of approach to electronic publishing. While there has been a proliferation of websites willing to "publish" the work of first time and unpublished writers, the established real world publishers have preferred to look at a model closer to online distribution rather than online publishing. Simon & Schuster, Time Warner, and Penguin Putnam are all either currently releasing or intending to release pre-existing titles of its authors in electronic format. While the proponents of the e-book promote it as the next evolutionary stage in the consumption of literature, like so many other internet ventures, its success is currently driven more by its own over-excited digital signals than by demonstrated profitability.
ONLINE OPPORTUNITIES
The distribution of literature online does provide some unique opportunities that are not available in the physical world;
- the possibility of higher royalties to authors resulting from the elimination of intermediaries like agents and editors
- the removal of the need for a physical inventory means the e-book never runs out of stock; and
- material in a digital form allows for easy searching for favourite text, updating of information and the incorporation of the work with other media like graphics, animation and sound.
Currently, the main barriers against the establishment of the e-book as a viable commercial activity are slow consumer acceptance and still-developing technology. Some of the potential downsides;
- the huge volume of material on the internet may make it difficult to attract readers.
- many e-publishing companies offer minimal or no editing of work and little promotion or marketing, at least without payment of a fee.
- protection of the author's copyright has varied from encrypted files that work only on a single, specific computer or device to the distribution of Word documents or, even worse, html files.
Whilst attempts have been made to prevent the copying, printing or sharing of material, mainly through encryption, no method has been developed that is immune to circumvention by hackers. Stephen King has acknowledged this by releasing episodes of his new novel, "The Plant", without any attempt at copy protection. Instead he has relied on the honesty and goodwill of readers to pay for the work they download.
THE CURRENT E-BOOK MARKETPLACE
The Australian Society of Authors (ASA) is currently working on a pilot program, OzAuthors, in conjunction with IPR Systems, to provide access to literary works in digital format. Whilst users will be able to preview work for free, payment will be required whenever a page, chapter or work is copied, downloaded or used, with the money being distributed by the ASA to authors and other partial rights holders (e.g. illustrators and translators). An Australian site that publishes ebooks and is willing to accept submissions from first time or unpublished authors include www.zeus-publications.com.
NEGOTIATING THE DEAL
The increasing interest, by both publishers and consumers alike, in the internet as a marketplace for literary works makes it crucial that authors pay particular attention to their valuable electronic rights when entering into publishing contracts. Consider the following;
- license the work, where possible, on a non-exclusive basis rather than granting an exclusive licence or an assignment of copyright
- negotiate electronic or digital rights separately from print rights
- ensure the publisher has an obligation to protect the integrity of your work and to give you an appropriate credit
- consider negotiating royalty payments as opposed to a flat fee, based on the number of items sold or times the material was accessed
- ensure that any licence to publish your literary works online is for a limited time period, is renegotiable at regular intervals and will revert back to you if the publisher fails to exploit, promote or sell adequate copies of the work.
Other important considerations when looking at prospective epublishers include:
- what kind of services do they provide? Some, like www.mightywords.com, provide little or no editing of material and are basically posting services.
- what is the royalty rate? Although most e-book publishers surveyed offered the author 30-40% of the retail sale price it can range from 15-85% and, in the case of www.hotreads.com, is fixed at 40 cents per copy sold.
- what do they charge for providing various services? These may include set-up fee, storage or hosting fees (usually charged on a per month basis), submission fees, editing fees, listing fees (to have the ebook listed on the database), fees for obtaining an ISBN (International Standard Book Number) used to record the date a book was published, marketing, promotion and printing fees (if they provide the ability to print paperback or hardcover copies of the work).
As with all contracts, read the terms carefully and, if the terms are unsatisfactory, try and negotiate a more favourable deal. As always, it is best to seek legal advice before signing.
For More Information on the OzAuthors project go to http://www.ozauthors.com.au or call (02) 9458 6400.
*Peter Ton was a volunteer with Arts Law in 2000.
