To market, to market… in which territories and do you even have the right(s) to sell your own book?

As I’ve explained in my previous post, turning a backlist book into an ebook is nowhere near as straightforward as some folk might like to think, especially for titles more than ten years old. Once that’s done, more work, decisions and potential complications remain.

An ebook is no use to anyone unless potential readers know it’s there to be bought as simply and as widely as possible. So once again, I have decided to contract this part of the process out, specifically to Wizard’s Tower Press. I’ve known Cheryl Morgan for a good few years now and have the highest regard for both her technical skills and her commercial acumen – and when it comes to ebooks and the so-rapidly changing world of books these days, a publisher really does need both.

Once again, this is a commercial transaction with Wizard’s Tower taking their percentage as per the contract we have signed. If I were getting the books to market myself, I wouldn’t be giving up that share of the revenue but once again, money=time+convenience applies. Moreover 100% of not-very-much is not-very-much. I would much rather have a somewhat lesser percentage of considerably-more, trading theoretical income off against benefiting in very real terms from someone else’s skills in getting my ebooks to market far more effectively than I could myself, via Amazon, Barnes & Noble, Kobo and (ideally from my point of view, if you’re thinking of buying) through the Wizard’s Tower Bookstore where you’ll find a good many other excellent titles.

Ready to go? Not at all. The first conversation Cheryl and I had revolved around rights. Specifically, did I actually have the ebook rights to the works I proposed to publish? Specifically world rights because the aggravation of trying to manage geographical restrictions on ebook sales for Wizard’s Tower is simply not to be contemplated. The short stories and ‘Turns & Chances’ were straight forward enough but what about The Tales of Einarinn?

Referring back to my contracts with Orbit, there was no mention of ebooks at all. There had been a few addenda here and there over the years as Little,Brown and its various corporate overlords discussed what ebooks might mean in the short, medium and long term. The only certainty over this past decade has been uncertainty. Not so long ago, a solid case could be made for ebooks only ever being a sector of the market akin to audiobooks, only worth doing for the front-list bestsellers. Now it’s looking quite likely that ebooks will actually replace the mass-market paperback – though there are still debates about that, not least as to whether that will only apply to English language publication, with much slower uptake in translation. How territorial and language markets will be managed, with all the complications like unequal purchasing power dependent on local currencies remains a puzzle.

So amid all this uncertainty, in what has been a punishing decade for book sales for all sorts of other reasons, publishers have been scrambling to shore up their position, ideally securing ebook rights as widely as they can. In some cases this has led to authors being frankly bullied into giving up ebook rights retrospectively. In other cases, publishers simply haven’t bothered to ask, just putting out ebooks on their own initiative.

There have also been some extremely creative interpretations of clauses in contracts going back decades, as with the Harper Collins US vs Open Road lawsuit which hit the New York court system and the trade press back in December 2011. I won’t recap the whole complex case here but Harper Collins US claimed rights

to “exploitation” (counsel’s word) of the Work “through computer, computer-stored, mechanical or other electronic means now known or hereafter invented.”

In other words, even though that contract had been signed in 1971, when ebooks really were the stuff of Science Fiction, that interpretation was claiming ebook rights forty years later…

My own position with Orbit was thankfully straight-forward. When I had started considering epublishing my back list myself, I got in touch with the relevant people in the rights and legal departments and we established that insofar as limited ebooks rights had ever been granted in addenda to my existing contracts, all those options had long since expired, giving me control of any and all ebooks, and indeed, we began the process of reverting all other rights in my backlist.

Except… the US editions of The Tales of Einarinn are published by Eos, a division of Harper Collins US. These contracts remain in force. While there’s no mention of ebooks, there is a sub-sub clause granting them the right to ‘record, transmit and display’ the works by electronic means. Did that give them a claim on ebook rights, as with the Open Road case? Would we, at very least, need to put everything on hold, until there was a judgment in that case? What if Harper Collins US won their case?

I took legal advice through The Society of Authors, establishing that the clause’s wording had been explained to me as only granting the publisher the right to keep my work on their computer systems for editing, production and promotional purposes relating to the physical printed books. We also discussed the final line in that sub-sub clause explicitly excluding any grant of permission to create any multimedia product from my work.

I’d insisted on that line, reading that contract back in 1999, when the rising popularity of computer games had seen some less than ethical rights grabbing going on. Not that I have ever had any reason to consider Harper Collins US anything other than upright and principled but having worked in personnel management and dealt with employment contracts, I know exactly how important precision in contract language can be. Far better to avoid any misunderstanding from the outset.

There’s considerable discussion in trade circles at the moment relating to such matters. Is an ebook merely another format of a book, like hardback, trade paperback, serial or magazine publication, all of which rights, and more, such as audiobooks, were covered in the contract? If so, rights issues could remain complicated. Or are ebooks software and thus a multimedia product specifically excluded by that line? They’re licensed in the same way as software after all and taxed as such here in the UK.

More emails went back and forth and happily, the conclusion was reached with goodwill on all sides, that I do indeed have worldwide ebook rights to The Tales of Einarinn. Harper Collins US will continue to sell their print editions and hopefully we will both benefit from cross-promotion once the ebooks are available.

So we’re ready to get those novels on the road to epublication following Turns & Chances! Once we’ve decided on a price… more on that tomorrow.

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