MSF&F Presents...
Protecting Your E-Rights
One of the subjects generating much heat on the Web is how to protect your writings. Many magazines want to buy your work with the option of posting it on line forever.
Several professional have recently spoken out on this subject. We have posted the letter from an agent, Richard Curtis, the Association of Electronic Publishers and an author, Doug Green. Anyone wish to add to the debate will find that MSF&F has the room.
The following open letter was received by MSF&F. We queried Mr. Richard Curtis, Richard Curtis Associates, to verify authenticity and receive permission to publish. The letter appears here without editing or revision by MSF&F. He has astutely summarized all the major issues concerning epublishing. Before you sign that contract, read and understand your rights.---------------------------------------------------
October 26, 1998Dear Author:
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.
1. Print on demand. Publishers, distributors, and booksellers now have the capability to print economically single copies of a book upon request by a consumer.
2. 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.
Sincerely,
RICHARD CURTIS
The question of copyright, and assignment of copyright, was posed to members of the Association of Electronic Publishers (AEP). Read how they handle the 'in-and-out' of print issue.
Mary Z. Wolf, Publisher, Hard Shell Word Factory sent this reply.
Most electronic-only publishers like Hard Shell Word Factory already have author friendly terms.
A couple of examples: The copyright issue: We have a one year contract with option for renewal, rather than the "out-of-print" clause he mentions. If the contract isn't renewed, the e-rights return to the author. The other AEP members have similar contracts, some with shorter or longer terms, but
pretty much the same.Royalties: 30% or higher royalties instead of 10% or less. Another thing the traditional publishers are doing is charging around the same amount for an electronic version as they do for a print version, which is certainly much more profitable for them, but they don't pass any of this along to the
authors in higher royalties--if anything, they have lower rates for sales like these.Hope this helps. :-)
Regards,
MaryJanine Johnson, Publisher, Petals of Life sent this reply.
Our authors books are copyrighted in their names only - not in the publishers name.
The author then signs over rights to a publisher for a contracted time period. I can only speak for myself, but we acquire rights for a period of three years. That is for both our print books and electronic books. Therefore, after the three year period is up, the rights revert back to the author, and the author can publish their book elsewhere, should they so desire.
And we only purchase electronic and print rights. There are many other rights the author can still sell, even while they are published with Petals of Life.
With regard to royalties, I quote straight from our contract:
(3) Pay you, the author 50% of the realized gross purchase price of each electronic book sold and pay you 30% of the realized gross purchase price of each print book sold. We provide a royalty statement at the first of each month and we include a check for your royalties from the previous month's book sales.
I hope this helps. :)
Janine JohnsonSilke Jeppenlatz, Publisher, Dreams Unlimited sent this reply.
We handle it as follows:
The author applies for copyright - not we. While we will set everything up for them (ISBN etc), we do not hold the copyright, the author does. Effectively what we do is *lease* the right to distribute the work for a set period of time, during which it is exclusive to us. If the author is no
longer under contract to us, we don't hold any rights to the work, leaving him/her free to sell it elsewhere. (This is in the contract, to protect the author's interests.)We would "never" keep the rights to ourselves, even if we had them. It is the authors work, that's who should have the rights to it.
All of our staff are writers, as well as editors etc. We understand the position the writers are in, and we will always try to accommodate the authors requirements. Be that in cover design, or any other matter. Sometimes this may not be possible, but when it comes to copyright, there really is no question as to who holds it: The author. Always.
I hope this helps to shed some light on the issue. - Which is, as you rightly acknowledge, a very important one, and one that authors should take very seriously. If there isn't an "out-clause" in the contract, stating when the rights revert back to the author, then they should be very careful where
they sign up.
It's important to read a contract carefully, and to query anything you don't understand, or don't agree with. Always. If the publisher is unwilling to explain what exactly a clause means, then I'd say watch out. Nag. Nag until they explain in terms you understand. This applies to any contract, obviously, but especially to something where you might lose the rights to your work.We don't have "legalese" in our contract, simply because - we're not lawyers. We need to understand just as much as the writer we sign up. If "we" don't understand what it means, how could we expect the author to understand? Hence they are in plain English, spelling out exactly what is what, who does what, who gets what, how and when it terminates etc.
You may be interested to know that our contract was checked over by an agent before his author signed it, and the agent was quite obviously agreeable.
We will be posting a sample contract on the site soon. I'll drop you a line when it's up.
Best of luck with your article.
Best Regards,
Silke Juppenlatz
Dreams Unlimited(For those interested, we'll post the site when the contract is up. Jo & di)
From Ann Taylor, Senior Editor, Indigo Press sent this reply.]
At Indigo we purchase electronic and print rights for one year. Audio and other rights remain with the author. The copyright is in their name. Indigo was founded by writers, and we believe our contract is fair to all parties because of that input. Hope this information is helpful. Let me know if I can help in any other way.
Ann Taylor
Senior Editor Indigo Publishing
[Ed. Note: Members of the Association of Electronic Publishers are listed at their Web site. For further information, you can contact them.]
Finally, this letter from author Doug Green
Re: copyrights, writer's rights and web rights
As a full time writer, all the above terms scare the bee-jabbers out of me. It used to be that we struggling wordsmiths sold our first North American rights, a reprint or two and then, having recovered the costs of producing the article, made our profits on other reprint rights. Now, I don't fully understand all the legal issues and I don't understand the fine print, but I do understand the economics. If I can't sell it more than once to recover my costs and make a profit, I had better get a good price for the original sale.
I won't blather on about earning my living from the sweat of my brow given the climate controlled office I've created for myself; however, if I want to keep that office I have to pay a bit of attention to what the internet is doing to me. Let me quote from an author's agreement that was just sent to me. "You hereby grant to XX Publishing, a license......at any time in any form in the future, but not limited to, print, broadcast or electronic means as set forth in Addendum A with no additional payment." Addendum A, a full page of fine print, starts off by saying "Author hereby grants and assigns to Publisher any and all electronic rights in and to the Work, in perpetuity and throughout the world...(listing of all kinds of electronic systems)...whether now known or hereafter invented."
Now, if I read this correctly, this agreement means that I give this publishing company all rights to my work -- at no additional payment --and they can use it forever, in any way they can invent. Does this allow me to make money after the first sale from the work that I created? I suspect not, especially given article three of the agreement that states "Nothing contained herein shall be construed to constitute the Article as a work for hire You shall own the copyright and any and all proprietary rights in and to the article." Hmmm, no work for hire means no company benefits and I'll own whatever rights are left after they've used the article forever at no extra costs in whatever media - electronic or otherwise that they chose. Darn decent of them.
I also had an offer from a web site to print my articles - they really like the way I wrote and could they use the material. "No", they wouldn't pay for the material but "Yes" they would give me a by-line and an email address so other people could ask me questions directly. And yes, they wanted all electronic rights to permanently archive any material I sent them. At least the first publisher wants to pay me for the first print rights - even if they were intent on taking everything after that. The web site declined to time limit the archived material, "We can't make an exception for one author." I declined to give them free material - forever.
What's my take on this? My take is that publishing is undergoing a sea-change and everybody's trying to protect themselves as best they can. The net - with its one-book-at-a-time capacity and self publishing ventures - will influence the publishing business in ways we can't yet predict. Writer's who are serious about their own work will work with writer's groups, investigate creating their own publishing companies and will become best friends with their lawyers and agents. It might not be easy but it sure will be interesting.
Doug Green
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