'Authors Beware': Interview with Steve Rossiter editor of The Australian Literature Review on the D Publishing saga
Dec 21, 2011
If you follow certain bookish sites, you may have seen the ominous warning ‘Authors Beware’ quite a lot in the last few days. Dymocks Books, Australia’s largest bookselling chain, last week launched its widely anticipated self-publishing arm, D Publishing. Described in the promotional material as ‘author driven,’ the service allows authors to upload draft manuscripts online and publish their work in print, e-book, (or both) and distribute through Dymocks’ networks.
In an article in September on the upcoming launch, Jason Steger reported that, ‘Dymocks did not see itself as building an operation to compete with standard publishers, and he [chief executive Don Grover] said the systems and service it offered would separate it from other self-publishing companies.’ And separate itself it certainly did.
Though concerns were raised initially over the costs of D Publishing’s services – for ebook publishing at least it is reportedly far higher than comparable organisations – it was the release of their publishing agreement (mandatory for authors wanting to take advantage of any of Dymocks’ distribution networks) that caused the gravest concerns. Within days D Publishing had the dubious honour of being called possibly ‘Australia’s worst publishing contract.’
What is very clear from the commentary is that this is not a typical publishing agreement, and not in line with industry standards. Publishing contract expert Alex Adsett, who assessed the D Publishing agreement, told the Weekly Book Newsletter that the contract was ‘as terrible as some of the online commentary suggests.’
An article in the Australian Literature Review by its editor Steve Rossiter ‘D Publishing by Dymocks Books – AUTHORS BEWARE’ has become the ‘go to’ piece on the issue because of its succinct summary of the major issues with the contract. Rossiter has been at the forefront of attempts to alert authors of the dangers of entering into this contract, and has been in talks with senior mangement at Dymocks Books in an attempt to change the contract to bring it into line with other self-publishing agreements.
Though Dymocks amended its initial publishing agreement in response to widespread criticism, the changes were negligible, and according to Rossiter in his article for Aus Lit:
The major change has been to bury key details in less direct language and disperse that key information piecemeal across more clauses. This may make key details less obvious to inexperienced authors until they have accepted the agreement but doesn’t address the problems.
A third version of the agreement has been promised – but the contract has, at the time of writing, been taken down from the D Publishing site.
I interviewed Rossiter on the D Publishing saga, and what authors need to watch out for when signing self-publishing contracts.
You’ve been in talks with senior management at D Publishing. What were the key concerns you raised?
The most important concern I raised was the clause in the Publishing Agreement in which authors would grant a license for D Publishing for worldwide print and ebook rights plus ‘all other rights in the work’ for the duration of the copyright. Essentially, the author would license all commercial aspects of their copyright in the work, including foreign language translations, audiobook adaptations, film or TV adaptations, etc (clauses 3.1 and 3.3 in the agreement).
For what many would describe as a self-publishing or vanity press service, the extent of the rights to be licensed under the Publishing Agreement could be considered very excessive.
I raised concerns about issues to do with granting such an extensive exclusive license to one publisher, distributor, agent and retailer all in one and a lack of safeguards for authors.
I raised concerns about the possibility of D Publishing investing in stock on an author’s behalf then holding them liable for returned stock.
Rates for subsidiary rights were defined by the minimum share D Publishing would get with no cap on their maximum share, allowing them to set those rates at their discretion for each case.
There is more, but most issues stem in some way from the concerns above. The post outlining my initial concerns, which are still concerns, is at D Publishing by Dymocks Books – AUTHORS BEWARE. A PDF of the latest publicly available version of the agreement is now available at that link. There is also some discussion quoting parts of the agreement at Writer Beware, a publishing industry watchdog blog sponsored by Science Fiction and Fantasy Writers of America and supported by Mystery Writers of America.
In an interview with Weekly Book Newsletter, Dymocks general manager of ecommerce Michael Allara claims that the issue is in the ‘interpretation’ of the contract: ‘out of context’ as he puts it. How do you respond to that?
Based on the timing of the Bookseller + Publisher article, it seems Michael made those comments before our discussion at Dymocks Head Office on Wed Dec 14. I would hope that he now fully understands that it is not a matter of interpretation. There are parts of the Publishing Agreement which he acknowledged to me need changing, and for reasons beyond just comprehension of the wording.
Part of the issue that came up in conversation is that Michael wants people to interpret the Publishing Agreement in the context of D Publishing’s implied practices and intentions outside of the Publishing Agreement (or supposedly implied practices and intentions – how are people to reliably judge such things?) and draw those into some sort of wider interpretation. On top of that, the Publishing Agreement had some internal inconsistencies, inconsistencies with information elsewhere on the site, and major inconsistencies with what Michael claimed to be their implied practices and intentions.
NOTE: That Publishing Agreement, which had been revised from the initial version, has now also been taken down and should apparently be replaced soon.
In your discussions with D Publishing, have management conceded at all that more rights need to be given to authors than the ones currently outlined in the agreement?
I think they would probably say that rights were there but that amendments to the wording will help people better understand the Publishing Agreement in a wider context.
Michael Allara discussed with me a much more non-exclusive rights arrangement with authors, in which authors opt in or out of licensing different aspects of rights for their work. However, this is at odds with what is actually in the Publishing Agreement and most authors I have come across would want more than an ambiguous notion of implied practices and intentions when the actual written agreement licenses to D Publishing the commercial rights to their work worldwide for the duration of the copyright (along with other concerns).
What do you think are the key rights authors need to retain when self-publishing, and what do authors need to look out for in publishing agreements?
There is not really a single formula for what rights to keep and what rights to hold onto for all authors in particular situations. The important thing for an author is to look carefully at what is actually being offered then look carefully at what will be required in return and ask if that is the most competitive option available.
There is nothing wrong with granting exclusive rights to a publisher for a territory such as Australia or even the world, but authors would do well to consider how well the publisher are likely to use those rights and how much of the rights to a work the publisher needs to do what they want to do. Some are concerned, for example, that D Publishing may not be as well positioned as some other publishers or distributors to make good use of, say, Hindi translation rights or to act as an agent for a US film adaptation of a novel.
It came up in conversation with Michael Allara that he objects to people using the term self-publishing for what D Publishing offers, preferring D Publishing to be thought of as an ‘author-driven traditional publisher’ (it’s just that the author-driven parts are not expressed in the Publishing Agreement). Granting exclusive rights for a territory to a ‘traditional publisher’ typically also comes with things like payment of an advance on royalties; the services of an editor, book designer, and so on; an investment in stock, and an investment in promotion.
Where can writers go to receive help and legal advice before they enter into a publishing contract?
Various writers’ organisations and publishing consultants offer assessments of publishing agreements. This might cost $100-200, but getting it right and laying the foundations for a mutually beneficial relationship between author and publisher could save thousands.
There are also lawyers who specialize in areas like copyright, contracts, intellectual property, entertainment law, and publishing. But a lawyer could be expensive.
Authors can also get a friend who is an author, publisher, someone who deals with contracts in their work, or just an intelligent person to have a read and give their take on it.
Whatever an author decides, or their budget allows, they would do well to get the person looking at a publishing agreement for them to point them to the actual wording of the agreement where there is concern, so the author can judge for themself and get other advice on that part of the agreement.
If D Publishing fails to adequately amend its agreements, are there other organisations you would recommend, for writers still wanting to self-publish?
The standout option for authors globally for print-on-demand books would be CreateSpace (an Amazon company). Essentially, they have the advantages of D Publishing without the drawbacks. They are a self-publishing/self-distribution service and don’t try to be ‘traditional publishers’ with authors and control rights in the authors’ work. CreateSpace currently do not have a printing hub in Australia, meaning orders ship from the US or the UK, but still at competitive prices. CreateSpace makes a very good offering for Australian authors – they just have to factor in shipping times. If D Publishing, or someone else, does not make a good publish-on-demand offering with local printing very soon, it leaves the door wide open for CreateSpace to step in and take the Australasian print-on-demand market for self-publishing authors and emerging independent publishing companies.
There are many options for ebooks, such as Amazon Kindle, Kobo, Barnes & Noble Nook, Apple iBooks, and Google eBooks. Those who are not technically minded can use Smashwords, a service which sets a book up with a range ebook retailers from a single file submitted by the author, but for a significantly smaller cut than Penguin’s much-criticised Book Country publishing service. There are also emerging Australian ebook publishing options, such as ReadCloud and Booki.sh, but these currently focus on publishers and not individual authors.
D Publishing has an opportunity to get it right with a new Publishing Agreement. If they get it wrong, many will likely reject there offering and take their work elsewhere. If they get it right, they could make a good offering and be very successful with Australasian authors as well as international authors wanting to reach Australasian readers.