There are still problems with the Publishing Agreement from D Publishing. I wrote about my concerns with the agreement in D Publishing by Dymocks Books – AUTHORS BEWARE. Several minor revisions and now a major revision later, some things have been addressed but problems remain.
Since the launch of D Publishing about two weeks ago, the issue of their Publishing Agreement has been covered in arrange of articles online. Below is a small selection:
Dymocks Responds to Criticism of D Publishing Contract
D Publishing: Dymocks New Self-Pub Service
Could this be Australia’s worst publishing contract? And bookselling icon Dymocks is behind it.
The Only thing Worse Than D Publishing’s Fees is Their Contract – The Digital Reader
‘Authors Beware’: Interview with Steve Rossiter editor of The Australian Literature Review on the D Publishing Saga
The new agreement leaves the door wide open for a company like CreateSpace to step in and open a local printing hub for print-on-demand books to be printed in Australia, or for an Australian printing company like Griffin to offer a print-on-demand publishing service and cut D Publishing out of the deal. It’s a shame because D Publishing could have been enthusiastically embraced by Australian authors and could have positioned Dymocks to grow into something like an Australasian Amazon, but I don’t see how they are going to attract a lot of quality content with their new Publishing Agreement.
The sad thing is I discussed issues which remain in the Publishing Agreement with Michael Allara, Dymocks General Manager of eCommerce, and suggested solutions.
They have addressed or partially addressed some things, but there are major problems they have been unable or unwilling to adequately address.
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The agreement now includes a short ‘Guide to Publishing Agreement’ at the start, which includes the assertion that “the agreement is designed to be read in conjunction with the process for publishing your work with D Publishing as some of the concepts in the agreement relate to data or choices that you make when producing and managing your “Completed Work”.” This leaves open ambiguity about what is merely an operational matter which can be readily changed and what is actually being offered and guaranteed to authors. With no means for an author to terminate the agreement, except by permission from D Publishing or where a breach by D Publishing can be proven which is not remedied within 28 days after the author has issued written notification of the breach to D Publishing, this could prove problematic for authors.
Below is a discussion of some of the notable aspects of the new agreement:
An author grants exclusive distribution rights for the work to what D Publishing call their Core Distribution Channels (Dymocks stores, the Dymocks website and Google eBooks).
3.1 If the Author selects distribution through the Core Distribution Channel only then the Author grants to D Publishing the sole and exclusive licence to:
(1) to print, publish and sell the Work in hardcopy; and
(2) to produce, publish and sell electronic book and multimedia (being any format or file that combines two or more media such as text, image, video or sound) forms of the Work; and
(3) to produce, publish and sell audible (or spoken) book,
through the Core Distribution Channels and for the territory of the world in the Core Distribution Channel only.
D Publishing may nominate what they call Nominated Secondary Distribution Channels and an author has 30 days to reject that distribution channel or D Publishing will have exclusive distribution rights for the work in that distribution channel. (An author would have to ensure they are not without access to appropriate means of communication to receive and respond to notifications for 30 days or more.)
If the Author selects distribution through the Core and Secondary Distribution Channel then the Author grants to D Publishing a:
(1) sole and exclusive licence to:
(a) to print, publish and sell the Work in hardcopy; and
(b) to produce, publish and sell electronic book and multimedia (being any format or file that combines two or more media such as text, image, video or sound) forms of the Work,; and
(c) to produce, publish and sell audible (or spoken) book,
through the Core Distribution Channels and for the territory of the world in the Core Distribution Channel only; and
(2) sole and exclusive licence to:
(a) to print, publish and sell the Work in hardcopy; and
(b) to produce, publish and sell electronic book and multimedia (being any format or file that combines two or more media such as text, image, video or sound) forms of the Work,; and
(c) to produce, publish and sell audible (or spoken) book,
through the Nominated Secondary Distribution Channels and for the territory of the world in the Nominated Secondary Distribution Channel only; and
(3) non-exclusive licence, in conjunction with the Author, to:
(a) to print, publish and sell the Work in hardcopy; and
(b) to produce, publish and sell electronic book and multimedia (being any format or file that combines two or more media such as text, image, video or sound) forms of the Work; and
(c) to produce, publish and sell audible (or spoken) book; and
(d) to exercise, including by way of sub-licence, all rights in the Work other than its first volume and electronic publication rights (Subsidiary Rights).
If an author rejects any of the Nominated Secondary Distribution Channels put forward by D Publishing, D Publishing can choose to amend their agreement with that author to remove all Nominated Secondary Distribution Channels.
D Publishing may, from time to time, give notice that a Secondary Distribution Channel has become a Nominated Secondary Distribution Channel. Where this occurs the Author will be notified and given 30 days to object to the nomination of the relevant channel. Where the Author rejects the nomination of a Secondary Distribution Channel D Publishing may, at its option, elect to stop distributing the Work through all Secondary Distribution Channels (including Nominated Secondary Distribution Channels). Where this occurs the Licence is automatically varied to remove D Publishing’s right to distribute the Work through Secondary Distribution Channels.
An author can work with distributors to distribute the work to channels which have not been established as Core or Nominated Secondary distribution channels, but cannot license any rights for the work to another publisher.
Clause 3.2(3) expressly permits the Author to personally distribute the Work through Secondary Distribution Channels until such time as that channel or distribution method is nominated by D Publishing as a ’Nominated Secondary Distribution Channel’. The Author may at any time grant to a third party distributor the right to distribute the Work on its behalf but may not enter into an agreement with another publisher in relation to the Work which would result in part or all of copyright in the Work being licensed to the publisher.
This means that an author locks themself into D Publishing as the sole publisher for the work apart from self-publishing carried out by the author (without the assistance of other publishers).
An implication of this is that authors cannot sell territorial rights to various publishers in various countries to take advantage of the capabilities of different publishers suited to doing a good job in different regions of the world. If an author rejects a Nominated Secondary Distribution Channel and D Publishing removes all Nominated Secondary Distribution Channels from that authors agreement then their only remaining option for publishing the work to be distributed beyond Dymocks and Google eBooks is self-publishing.
An author now grants non-exclusive subsidiary rights to D Publishing (but they cannot ‘reasonably withhold permission for D Publishing to exercise a subsidiary right’). Although subsidiary rights are granted non-exclusively, the scope of the exclusive license for distribution channels established under the agreement still allows for exclusive audiobook and movie adaptation rights for those distribution channels.
The new Publishing Agreement has a range of notes added throughout the document. However, a clause near the end states “notes in the document are inserted for reference only and do not form part of the agreement itself”. D Publishing still has the ability to make changes to the agreement written in but a note includes: “D Publishing cannot use the clause above to change the commercial terms set at the time the Author enters into the contract.” I will leave you to judge what level of assurance that provides.
A note also states: “The Author controls the quantity of physical books produced, not D Publishing.”
There is now no mention in the Publishing Agreement or the Rate Card of what rates an author receives for subsidiary rights.
There is now mention in the agreement that authors who hold an ABN in relation to their writing activities should ask D Publishing for an agreement amended to cater for this. It no longer says that an author should not have an ABN at all.
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I think this is a big opportunity being wasted by Dymocks. I also think most authors are not going to be prepared to license their rights to a publishing service which takes the rewards of an upper-end traditional publisher while taking on obligations similar to a hands-off self-publishing service or vanity press in return.
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The Australian Literature Review
www.auslit.net
