Authors and agents have been waiting nervously to see if a big publisher would attempt to grab hold of the long tail. This week Simon and Schuster in the US has emerged as that publisher, with a new provision in its contracts to retain copyright in all works that exist in its electronic database - whether or not the work remains in print. The company will no longer have to hold copies in its warehouse to qualify as the publisher of those works. The Authors Guild is advising authors not to sign.
Standard contracts allow rights to revert to the author if a book goes out of print and if the publisher shows no inclination to reprint it. That made sense when the only way to publish a book was to order at least several hundred copies from a printer. But digital technology is changing the business. Books can be held in digital files, to be downloaded or to be printed on demand. They need never be unavailable. What, then, becomes the definition of "out of print"?
Authors would say that their books are out of print if they have only a virtual existence, listed in the darkest corners of websites. Publishers would respond that digitisation prolongs the lives of books that would otherwise be uneconomical to promote. Simon & Schuster's statement about its contracts is: "We are embracing print-on-demand technology as an unprecedented opportunity for authors and publishers to keep their books alive and available and selling in the marketplace in a way that may not have been previously possible for many authors, and are confident in the long term that it will be a benefit for all concerned."
S&S has a point. A publisher is not likely to reprint a book if it predicts sales of only a few hundred copies; but the author would like to get those sales, and would struggle to find an alternative method of achieving them in the immediate future. As book buyers become used to new methods of delivery, such a book will find buyers who would have had no chance of discovering it in the pre-digital era.
The publisher has blundered, though, in attempting to insert this new clause in its contract unilaterally. The Authors Guild has seized the moral high ground; and S&S' rivals Random House and Grand Central have happily informed the press that they have no plans to introduce a similar policy.
In the UK, there have been informal discussions on the issue between the Society of Authors and representatives of agents and publishers. "We all accept," Mark Le Fanu, SoA general secretary, says, "that print-on-demand will become a central part of publishing, and that we need to work out a way in which we can give reasonable protection to publishers' interests while at the same time giving authors the opportunity to withdraw from contracts if sales are low."
In other words, clauses asserting that books are in print if they exist digitally are inevitable, because digital delivery will be the preferred method of distribution for more and more titles. However, authors and agents will insist that the contract become invalid if the publisher makes no effort to promote or sell the book. Haggling over the definitions of promotion and low sales are inevitable - the kind of haggling that Simon & Schuster should have got involved in before falling into this publicity disaster.
