May 31 2009
It’s hard for me to tell exactly how many of the readers of Dear Author are from outside North America, but it is not insignificant despite the fact there is no localization of the blog. In other words, we are an English blog that can be run through a translator but is not translated directly. Likewise, on a much greater scale, books have international appeal even without translation.
In this age of digital publishing, books can easily be transmitted from one country to another. In the digital publishing world, there are no borders. This is a wonderful thing. It means that the market for a creator’s works is not merely limited to an aging, dying, decreasing number of North American readers. It means that those who live in the UK, Germany, Spain, Portugal, Africa, India, China, and other countries are potential markets for publishing growth.
Yet publishing operates under an antiquated rights system that divvies up rights primarily according to geographic territories despite the fact that translation rights have long been a part of the contractual bundle of rights. Given the mobility of the economy, particularly when it comes to digital books, hewing to artificial geographic limitations is harmful to the health of our genre.
Rights affect readers in this manner. The author has a bundle of rights like a stack of straws. Each straw can represent a different right. The author sells each straw or a bundle of straws to the publisher. The straws that are sold determine what product reaches a consumer/reader and when. Authors and publishers have all the control in this scenario. All we readers can do is hope and pray and bug our favorite authors to release their straws in the format that we desire.
Author Courtney Milan suggested on twitter that perhaps the future of distribution of rights should be language based and I think this is a brilliant idea. Here’s why language based divisions make more economic sense in today’s environment.
First lets talk about primary rights and sub rights. Traditionally, primary rights are included in the “Grant of Rights” clause which assumes the right to publish and distribute a printed book. Thus, the primary right is the right to publish and distribute a print book within a certain geographic territory and in the home language of the contract. Another way to state this is that primary rights are those rights a publisher can and will exploit directly. Subsidiary or secondary rights (let’s call them “sub rights” from now on) are those that the publisher licenses to others. Primary rights and sub rights are paid differently to the author under the current system. Primary rights earn a percentage royalty and sub rights pay a percentage of the lump sum that the publisher receives.
The “Grant of Rights” clause can include sub rights such as foreign, translation, book club, electronic, film, television, audio, dramatic, serial, and digital rights. (Given the conglomerate state of publishing, the primary and subsidiary rights may vary from house to house). Because contracts are so onerous for an author, the author tries to keep as many rights as possible to exploit or sell at a later date, perhaps at a time she has more bargainining power. Plus, if the sub rights are in the hands of the publisher, the publisher can sell the sub rights for a small amount of money and the author has no ability to nix the deal. Some of these rights are negotiable and some are deemed non negotiable. Currently digital rights fall into the “non negotiable” category. Foreign rights and translation rights are often negotiable, in part because not all of the houses have either a great foreign rights arm of their house or the publishing house doesn’t have any direct access to foreign markets.
Part of the sub rights for a book are foreign, which are territory based, and translation, which are language based. Under the print publishing paradigm, foreign rights and translation rights are often sold together. This is due to the fact that many North American publishers don’t have a print distribution network in other countries and must license the rights of the author to a foreign publisher. As with any publishing contract, the authors push for a high advance so as to force the foreign publisher into a position to actively market and sell the translated book.
Under a digital paradigm, no new distribution network needs to be set up. The internet provides ready access for all users who have access and a means of payment. For those who read English, there is no need for a translated version of the book. All the international reader needs is for the author to provide those rights to the originating publisher.
The existing state of rights are a mess. For example, Book A could have been sold originally to US publisher with the foreign & translation rights reserved. The author then sells German territory and translation rights. Encompassed in the German rights sale is the right of the German publisher to distribute the ebook within the borders of its country regardless of the translation. There may be no German publisher who is willing or able to deliver digital content and thus no digital content is sold.
A better scenario is this:
Book B is sold to same US publisher with world rights. US publisher sells the digital copy worldwide and the author reserves her print territory and translation rights and digital translation rights until sufficient interest is shown to license the territory and translation rights to German publisher. German publisher then translates Book B and sells German print and German ebook version of Book B.
Print rights can be divided into traditional sub rights which include both territory and translation rights. Digital rights should also be considered a primary right. Currently I believe most authors receive a percentage royalty on ebook sales and therefore are treated like a primary right in terms of payment.
The author benefit is a legitimate digital copy is made available for purchase to all individuals with the means and ability to purchase. This can be accomplished by selling the digital primary right inclusive of world territorial rights but reserve translation rights for digital copies. Otherwise, the reader has only two choices. To not read or to pirate a copy.
Perhaps authors believe that by allowing an english language digital copy into a foreign market will reduce their ability to negotiate for a foreign rights sale. I would argue instead that the digital copy sales can prove to the foreign agents that the book has an audience in their market and that if there is no legitimate digital copy for purchase there are lost sales descreasing the amount of money an author could have made from the foreign market in the first place.
Every contract can be modified. As a condition to signing the second contract, the terms of the first contract can be rewritten to capture the evolving marketplace and growing international readership. Authors should look at each new contract as an opportunity to create a more perfect contractual environment which enables the readers who are willing and able to purchase the legal right to do so. Readers, all we can do is hope, pray, and write to our favorite authors and publishers and encourage them to make these digital books available to all those who want to buy them and read them.