Evolving Ebook Clauses

Ebooks have always been difficult to define.

Publishers used to claim that the ebook was just another delivery method for the author’s work, so naturally belonged implicitly under volume rights.  That didn’t last.  In 2001 Random House Inc lost a court case against Rosetta Books for trying to define them as part of volume rights.

Once it was established that ebook rights needed to be explicitly defined in the contract, definitions emerged which confined the ebook to being an electronic replica of a printed book.  They used words like ‘verbatim’, ‘in whole’, ‘unaltered’ etc in a form ‘primarily designed for reading’.

But it is very difficult to make a water-tight definition that can’t be mistaken for anything else.  On the Ebook Strategy course I teach at Book House, we always try, but ebooks are very difficult to pin down.  But although we can’t define it, we feel we instinctively know what an ebook is when we see one.

Now it looks as if ebooks are becoming even harder to pin down.  The ebook clause is evolving again.  This time the definitions aim to allow for enhanced editions, giving the publisher scope to make full use of the the features of ePub3 described in my last post.   Recent examples include the use of words such as ‘additional materials’ of various kinds to ‘enrich’ and enhance’ the reading experience.  Does the intuitive “knowing it when we see it” still apply?  If it has the full text of the book at its heart, with extra material added at the beginning or end, yes, we are happy to say it’s still basically an ebook.  But if the text itself is broken up, re-interpreted with images and audio, and perhaps even accessed non-sequentially, is it still an ebook?  Or has it become something else?  If so, what?

This is very exciting for readers, but the worry is that if the ebook is defined too broadly, it will encroach onto other rights, such as film, or app rights.   The challenge now is to hammer out new definitions that accurately describe the ebook in all its glory, without being so loose that anything goes.

Or will the divide disappear altogether, and this become another front line of convergence of media.

Ebooks have been around for just over 10 years, and in the mass market only for about 3 years.  It’s very early days for this new technology.  We are still making ebooks that look like books.  The first cars looked just like carriages.  Just as the very first car manufacturers could not imagine our sleek, fast cars of today, so we cannot imagine the ebooks of 2111.  I wish we could fast-forward, and take a look.

 

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5 Reasons to Love ePub3

Everyone is talking about ePub 3 which is launched this autumn, so I went along to UCL’s Digital Publishing Forum to find out what the fuss is all about. This is what I discovered from a very good talk by Graham Bell of Editeur.

Where did it come from?

ePub 1 was the Open Ebook format (OEB) developed by the IDPF
ePub 2 is the one we use now. The first device we could read ePub books on was the Sony Reader, launched in 2008.
But many publishers and readers are painfully aware of it’s limitations, so the IDPF have been working on upgrading it.
Now they have ePub 3 about ready to use, and you can see the specs on their website at idpf.org/ePub/30/spec

What does it do?

• Media: The thing that makes all the difference is that an ePub 3 file also contains other media, so things like audio, and animation can be added to the book, yet it still retains the all-important reflowing text of ebooks. These other media will appear in the correct place in the book, synchronised with the text – they don’t have to be grouped in an appendix at the back. Some ebooks do already include multi-media but they only work on a few types of reader, so if you have the wrong kind of phone, or your ereader is the wrong make, you miss out. ePub 3 aims to reduce these differences between machines as ePub 3 becomes a universally recognised industry standard.
• Layout: Current ePub ebooks are fine for novels and straight text, but ePub3 goes much further – not just books but also magazines, newspapers, journals, corporate publications whose highly designed pages need a fixed layout to look great, are more likely to work well too.
• Languages: whether the writing goes left to right or right to left, and starts at the front or the back of the book, whether it writes in letters or scripts or characters, ePub 3 will show it correctly.

How does it do it?

ePub 3 is based on HTML5. As this is the same code that many apps are created in, it will pave the way for ebooks to become more app-like. At the moment web browsers use HTML4 so we won’t be reading ebooks in Internet Explorer or Google Chrome.

HTML 5 is based on XML so ePub 3 tags keep meaning and structural descriptions separate from presentation instructions. This has the effect of making them less media-specific. An example is the <i> tag. Instead of meaning italics as it does in HTML 4, it means emphasised. A screen may be directed to show this in italics, but a read-aloud programme will know (directed by the CSS) to put a stress on that word when it reads it out. Similarly, the <b> tag no longer just means bold, it means strong, so the read-aloud will speak louder at that place.

What does this mean for publishers?

1. Better slicing and dicing: selling parts of a book is something publishers would Ilke to do more of, and the new structural tags in ePub 3 make it much easier to do. Each chapter or section has its own self contained structure showing headings and subheadings in relation to the part, not just the whole. It’s like a row of terraced houses that you can move apart into small detached houses without the party walls falling down.
2. Better page design: ePub 3 benefits from better styles in CSS. The designer can now put the page or parts of the page into columns and the reading device will fit them onto the screen, regardless of the size of the screen – they just reflow. This makes ebooks a possibility for a whole range of titles that really need that option in order to look good
3. Better discoverability: no-one can buy a book unless they can find it, and online you find by searching. ePub 3 uses SVG graphics. This means that diagrams are ‘drawn’ on screen according to instructions instead of being a fixed image pasted in. Included in those instructions is the text for the diagram, right there in the text of the book. That has two benefits:
   • a diagram’s captions and labels are searchable like the rest of the text, from within the book as well as on the web in services like Google Books
   • because they are embedded in the text, diagrams and captions will always appear in the right place instead of re-flowing off somewhere else and getting separated.
4. Better bells and whistles: all these things combine to make it easier to add things to help or entertain the reader. Instead of adding one photo, why not add a slide show? Maybe a diagram would be clearer if it was animated to show how it works. Want to know where Sherlock Holmes found the body? Here it is on Google maps. Ebooks will be able to be more like apps.
5. Better metadata: the book’s details are included in the ePub 3 file showing title, author(s), publisher, date etc in a way that a computer can read (ie not just painted in the artwork of the cover). Based on this information, and its links to further information, the computer can classify the book appropriately in its database. Thus we will have the self-cataloguing book. That will make life easier for librarians

All we need now is lots of affordable ereaders to enjoy these lovely new ebooks on.

 

 

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.