Agents – publish and be damned

Opinions abound about whether literary agents should help their authors to self-publish, as a big New York agency, Trident, comes out with the news that it is starting to do just that.

In all the flinging-up of hands in horror with allegations of greed and conflicts of interest, all the nuances are lost.  For example, Dean Wesley Smith says on his blog, that the dictionary definition of a publisher is one who issues copies of a book to the public, but I think the definition is so much more than that.

I think one crucial question is: who owns the rights?  When an author signs a deal with an ordinary publisher, they hand over to them the right to publish their book.  However when an author self-publishes their book, they don’t give any rights to anyone – they own all the publishing rights and are making use of them.  If an agent buys rights in an author’s book, then perhaps yes, they are publishing it,  but if the agent does not acquire any rights, leaving the author in the driving seat, then they are not publishing it, but rather they may be helping the author to self-publish it.

Another question is: who is paying for it?  Some agents pay for the production of the ebook edition themselves, and take all the risk, as a publisher does, and perhaps the “royalty” they pay the author reflects that.  In other agencies the author pays for everything, paying the agent to do the work on his behalf.

And how is the agent paid – in profits, or on commission?  This is another defining feature.  If the agent has paid for the production and any other work such as marketing, then they will need to get that money back through sales. They would probably need to suggest a 50:50 split of the income in order to cover their outlay.

If on the other hand, the author has paid the production costs, then commission on the sales made as a result of the agent’s work is more appropriate, and would be much lower than 50%.

Dean Wesley Smith says an agent stands to make “a ton more money” on a book by charging “publishing fees” plus commission than they would if they sold the rights in the usual way, and only received commission, and he says this leads to a conflict of interest.  The only thing is, an agent will always make more money selling the rights to a mainstream publisher, because of the huge difference in the number of copies the book will sell and the advance it will get.  For an agented author, the self-published route is a last resort for when the commercial publishers have given up.

And anyway, in my experience, those “publishing fees” tend to get spent on production – that’s what they’re for – and it is extremely unlikely that any agent or  author would make a ton of money out of a book published in this way.  If they thought the book was capable of that, they would sell the rights to a proper publisher.

Copyright gone wrong?

Is our copyright law doing its job?  The Hargreaves Review had a look and made some recommendations, and these were discussed today at the Westminster Legal Policy Forum: What’s Next for IP Law?  Intellectual property law was discussed from all angles, not just copyright, and I made some notes.  Here are what seemed to me to be the main/most interesting points:

1  Evidence based policy

Policy should be based on evidence, not on lobbying as it is now.
Evidence should be transparent in its methodology, open and peer-reviewed.
Evidence-based policy needs to replace ‘lobbynomics’
Not enough evidence exists, so £5m funding for research.

2 Proposed New “Copyright Exchange”

Intended to be a central and easy place to buy and sell rights.
It will be run by users and rights holders, with industry at the heart of it, led by private sector with incentives from government
Rights holders can choose to licence their rights through it, at the price they set.
A very ambitious plan.
Needs a lot of refining to avoid danger of making licences that rights holders don’t want eg granting licences to people the author hates.

3 Harmonisation

Not enough harmonisation between countries, even within EU, for seamless international protection and licensing, especially of patents.
Differences in copyright exceptions too, which may never be resolved eg due to difference of opinion on making hardware levies to remunerate rights holders for users making format-shifting copies.  UK wants exception for format shifting but not with levies.
UK plans are very radical and ambitious so we should help and advise EU in its review of IP law.

4 Penalties

Piracy needs to be tackled in a stronger more systematic way. Absence of online enforcement and visible consequences leads to lack of respect for IP law by public; but improved means of online enforcement with international cooperation and better punishments will change user behaviour.

5 Outdated?

As ever, establishment (Government and IPO) seems to think copyright is mostly OK and has proposals to strengthen and streamline it.  Campaigners seem to think that radical changes to the basis of copyright need to be made, and we are falling behind US and Europe in terms of user rights and justice.

What’s your view?

Sherlock Holmes with sound effects

I’ve just started reading Sherlock Holmes: The Adventure of the Speckled Band which is the UK’s first  ebook with its own sound track, published by Booktrack a couple of weeks ago.  This Telegraph article promises driving rain, thunderclaps and blood-curdling screams, so I’m not sure how I’m going to read it on the train, or in bed, which is where I do most of my reading!  Better get my head phones out.

Here’s a little clip of the ebook in action:

Waterstones eReader next Spring

I’ve been longing for Waterstones to bring out an ebook reader and a better ebook shop, so I was intrigued to hear what James Daunt would say about his plans.  He was interviewed on You and Yours (BBC Radio 4, Friday 9 September), when he also explained some of the rationale behind ending Waterstones’ 3 for 2 offers.  Here are my notes of what he said on Friday.

James Daunt on a Waterstones ereader:  “We want one and we will have one, and our new owner has the means to invest in it”.   He’s been wanting to face the challenge posed by Amazon and the Kindle:  “We can do so many things better than Amazon”.  As Barnes and Noble and the Nook have proved, digital sales combined with a physical bookshop is a powerful combination that makes perfect sense.

He said Waterstones’ ereader would be at least as good as Amazon, and preferably substantially better so Waterstones will give customers a better buying experience for physical and digital books .  Timescale: Spring.

What is he reading?  Anna Funder, All That I Am, which is “fabulous”.  He loves having a job where he has to read wonderful novels, although he reads more books he needs to know about than books he chooses for pleasure.

James Daunt on the 3 for 2s:  Waterstones are not ditching the 3 for 2 “as a concept” but don’t want to penalise people who just want to buy one book.  The trouble is, that type of offer encourages “all sorts of strange behaviours other than focusing on buying the best book”.

But books only got into the 3 for 2 offer “if cheques are written” which was bad news for authors who were not subject to those deals.  Much more stimulating bookshops will result, that are not the same all across the country because bookshops should be run by their managers, not centrally.  Central buying of offers etc strangles the individuality and passion in local shops.

Is he trying to remake the Waterstones chain in his own image?  In James Daunt’s own words:  “We’ll see”.

Authors: Digital Winners and Losers

“Who will the winners and losers be, as digital sales increase?”  asks the FutureBook Digital Census survey. http://www.futurebook.net/content/futurebook-needs-you  Will publishers, authors, agents, bookshops, mobile phone networks, software publishers win or lose?

The trouble with this kind of either/or question is:  most parties will win in some ways and lose in others.  The question asks whether unpublished authors will win or lose as digital sales increase, and I say both.  It seems to me that new authors trying to get published will find themselves losing out because publishers will be able to make more products from each title – not just a hardback and a paperback, but also an ebook and an app or several apps.  This means that a publishing company will focus its resources on getting more from each title, with the result that they have fewer resources to take on board brand new titles from unknown authors.

Having developed the skills and contacts necessary to publish all sorts of digital editions, publishers will then be looking for new books that can be published in all those new ways.  Books which lend themselves to only one format for some reason, and are unsuitable for the other formats are in danger of being turned down by publishers who need more from each title than just one edition.  This makes the hurdles even higher that an author has to jump, to get their book published.

But authors can be winners too.  It is clear that the opportunities for authors to publish their books themselves is increasing as digital sales increase.  The production costs are lower, and there are plenty of companies like Dandelion Digital offering author services to help them.  If the self-published author takes advantage of all the digital marketing tools the internet offers, there is no reason why the increase in digital sales can’t make those authors into winners.

What’s your view on this?

Have you done the FutureBook survey?  What did you think of the questions?

Publishing Contracts are Changing

Publishing contracts are changing.  Many clauses are having to be redefined to take account of the new realities of digital publishing.

Traditionally rights often revert to the author when the book goes out of print, because that’s the end of its life with that publisher.  But if the book never took the form of print on paper in the first place, that definition is very misleading.  The book is selling hundreds of copies a week in ebook format and print-on-demand, and yet there are no copies in the warehouse.  According to the contract, it is technically ‘out of print’, and has been since day one.

Clearly neither the publisher nor the author would want rights to revert with that level of sales, so we need a new way of determining the end of a book’s life.  The solution I favour is to agree on a level of sale, so rights will revert if sales fall below a certain number, and stay there for an agreed amount of time.  An example might be “fewer than 10 copies sold in three consecutive royalty periods”.

The ‘out of print’ clause is just one of the ones having to be redefined to reflect the way books are actually being published.  More thoughts on how digital publishing is changing contracts in my next post.