Of all the myriad disruptions in the publishing world over the last few decades, perhaps none are as powerful as the new permanence of the written word. Every book now has the power to stay in print and on sale for the rest of time. Not just the blockbusters, the instant classics, or the works from the biggest names—but all books.
Print on demand technology now allows a paperback to be spit out of a machine in mere minutes. The quality of print on demand books is better than those acid-paper Penguin Classics of yore, and the quality is only improving. Ebooks, of course, never run out, and they can be easily updated over time. Both editions sit on product page “shelves” that never collect dust, and these books never need returning. At any moment, a book written years ago can be “discovered” and crawl up bestseller lists.
I have already heard from writers who self-published, gave up on their careers, and then saw money hit their bank accounts. Books they no longer tended to had become bestsellers over time and with no promotion, and now these writers are engaged with their passion again. I learned about this after writing a post on KBoards predicting we might see this happen some years from now. I was informed that it is already happening.
The full effect of book permanence probably won’t be appreciated for another ten or twenty years. But we should start thinking about it now. Because copyright, contracts, and advances were created for an old model that no longer exists. Is there any possible way to defend a $5,000 advance for the lifetime rights to a work that can never go out of print? The standard term of copyright is the life of the author plus seventy years!
This is absolutely indefensible. It should cost much more to strip away ownership of a work of art for that length of time. One of three things needs to happen in book contracts, and immediately:
- We need a hard cap on the number of years in a term of license.
- We need to set price minimums for a life + 70 term.
- We need reversion clauses to move to a minimum wage.
Most foreign publishers set terms of license between 3 and 10 years, after which the author gets the rights back, no matter how well the title is selling. These terms are possible in the US. One of my contracts with a Big 5 publisher has a hard 7 year term, after which my rights are returned. Every publishing contract should have this as a possibility. It’s something that should be open for negotiation for authors at all stages of their careers.
The alternative to this would be a minimum advance for lifetime rights. I’d be happy with a low limit, like $100,000. That might still be cheap for the rights to a work that will never go out of print, but at least it would force publishers to offer a limited term of license to debuting and midlist authors who might not command a 6-figure advance. Of course, a higher price minimum of $500,000 to $1,000,000 would be preferable.
The final option is one I first saw from The Passive Guy, and that’s to get rid of outdated reversion clauses based on units sold and move to a minimum wage reversion clause. Reversion terms today are laughable. From a Big 5 publishers, I’ve seen a boilerplate reversion clause of 150 units over three accounting periods. That means, as long as the title sells 150 copies in any format in a year and a half, the publisher retains the rights to that work.
Clauses like these were ridiculous in the age in which they were written, but now they’ve become abusive. When books could go out of print, such low sales targets still worked to some degree. Now, a publisher could lower the price of an ebook to 99 cents, sell a couple hundred copies (or buy them internally), and retain ownership.
It’s not a question of whether or not publishers would do this but that they are not contractually forbidden from doing it. Contracts exist to protect parties from “what ifs.” A minimum wage reversion clause means an author and agent will know what their income will be in this age of variably priced, free to “print,” ebooks. The clause might stipulate that if an author does not earn $3,000 in royalties over any six-month period, the author gets the rights back at the end of that period (or the publisher is allowed a grace period to do something to boost sales).
There are several ways to handle term of copyright in an age of book permanence, and there are precedents for these solutions in foreign contracts and in some domestic ones as well. The problem is that agents and authors don’t demand these changes and stick to their guns. With the Big 5’s near-monopoly on chain bookstore distribution, there haven’t been alternatives to onerous contracts. You took what was offered, because the offer around the corner was going to look identical in every meaningful way.
The only people with leverage to get better terms are those authors who no longer need the protection. This is where self-publishing and platforms like Amazon and Kobo are a boon not just to indie authors but to all authors. When agents start advising clients to hold out for limited terms of license—and to self-publish if they can’t get these terms—contracts will improve for all writers.
In the end, we may not need an Authors’ Guild fighting for our rights. It sure would be nice to have them in our corner instead of the publishers’ corner, but now that the book industry has a true competitive force—and now that authors have real options—change is going to happen. We just need to start demanding it.