UPDATE: Dec 12
I had a positive phone conversation with senior management at D Publishing about redrafting their publishing agreement to better express their intentions and address authors’ concerns. Major concerns should be addressed this week and could result in a good offering for authors. :)
UPDATE: Dec 16
I spoke with Michael Allara, Dymocks General Manager of eCommerce, at Dymocks Head Office on Wednesday and apparently a new Publishing Agreement will be released soon. Let’s hope they get it right. [A follow-up article to that new agreement is now online at Dymocks D Publishing - An Opportunity Being Wasted.]
The launch of Dymocks’ D Publishing yesterday was anticipated by many aspiring authors as a potential avenue for them to have their work published and distributed, and for them to pursue an ‘author-driven’ strategy for their writing career.
However, after reading the Publishing Agreement made available at www.dpublishing.com it is evident that serious issues could arise for authors signing (or clicking acceptance of) that agreement. (There was a page that could be linked to directly yesterday but this has since been replaced by a PDF download initiated by scrolling down and clicking on Publishing Agreement in the menu at the bottom.) [UPDATE Dec 10: The original Publishing Agreement has been removed from the D Publishing website and a second version has replaced it. The substantive change to the agreement is negligible. The major change has been to bury key details in less direct language and disperse that key information piecemeal across more clauses. This may make key details less obvious to inexperienced authors until they have accepted the agreement but doesn't address the problems. Plus once an author has clicked their acceptance of the agreement there is a confidentiality clause which prohibits the author from discussing the agreement. The second/latest version of the agreement can be downloaded as a PDF by clicking on http://www.dpublishing.com/UserControls/download.ashx?format=PubAgreeDymocksWeb - for now at least.] The agreement has been taken down, so here is a PDF of the D Publishing agreement that was available before it was taken down.
If you think anything here is an issue, I recommend you get hold of [the latest version of] the Publishing Agreement yourself and make up your own mind.
Authors grant an exclusive license to Dymocks for commercial rights worldwide for the duration of the copyright, including all subsidiary rights to the work
While an author would have the right for their name to be attached to the work, they are essentially HANDING OVER CONTROL OF THE COMMERCIAL ASPECTS OF COPYRIGHT WORLDWIDE, INCLUDING ALL SUBSIDIARY RIGHTS, FOR THE DURATION OF THE COPYRIGHT.
Authors inexperienced in the business of publishing and in dealing with publishing contracts may not realise the implications of what they are agreeing to.
This is far from ‘author-driven’ for an author to make Dymocks the exclusive publisher, distributor, agent for that work and for all derivative works such as sequels and spin-offs, film and TV adaptations, audiobook adaptations, foreign language adaptations, etc.
Authors basically cannot terminate the license unless Dymocks is proven to be in breach of the agreement, which would be difficult for an author to prove, as the agreement does not put much obligation on Dymocks to do specific things. There is a clause allowing Dymocks to change the terms of the agreement at their discretion by amending the agreement on their website.
Ill-defined royalties for subsidiary rights
Author compensation for subsidiary rights is essentially that Dymocks gets NO LESS than 20% of what they call the Cost Price (which, for books, is basically defined as 50% of the retail price, so an author gets NO MORE than 40%).
An author could, however, get much less. Whether an author gets 0%, 40% or whatever else Dymocks decide is up to Dymocks.
Dymocks manage distribution and the author is liable for returned books
Dymocks can distribute an author’s work to the Dymocks book store chain and to other retailers worldwide in a manner they deem appropriate but the author is liable for any books returned.
For anyone not familiar with the process, many publishers will provide books to retailers on a sale-or-return basis – so they either sell the book or they can return it. This allows retailers to stock books while putting a lot of the financial risk back on the publisher.
Dymocks keeps 20% of an authors royalties to cover initial returns and the author is financially liable for any returned books, whatever those costs amount to.
It seems if Dymocks distribute to a large retail chain which goes bust and the retailer returns huge amounts of stock, there is the potential for authors to be bankrupt by their liability for returns.
Authors cannot hold an ABN (Australian Business Number)
Authors must declare that the exclusive worldwide license they grant to Dymocks is not subject to GST as the author is ineligible for an ABN because they are not conducting an enterprise in Australia.
Having an ABN prohibits you from granting Dymocks the license to your work, according to the Publishing Agreement.
Rights are granted exclusively and may or may not be used to any great extent
Rights are granted from the moment an author submits the Publishing Agreement but Dymocks can keep exclusive worldwide rights if they do as little as make an ebook available in any language in one ebook store anywhere in the world. Rights do not revert to the author if that’s all Dymocks ever want to do with the rights.
If Dymocks decide your novel does not have movie potential, then no movie. If Dymocks decide there should be no sequel, then no sequel.
An author’s future earnings potential, which could be based on years of time and effort, are put in Dymock’s hands and can be taken away
As the holder of exclusive rights, Dymocks could take punitive measures against authors they have a disagreement with by decreasing distribution or stopping it entirely for the author’s book(s) and not allowing the author have that work published elsewhere.
Dymocks are given editorial control
The relevant clause here is under the heading of Legally Objectionable Material but don’t let that fool you, because another clause states that:
“headings are [for] the ease of reference only and do not affect interpretation.”
Therefore the clause below applies, whether related to legally objectionable material or not:
“If the Author refuses to amend or delete passages in the Work to Dymocks reasonable satisfaction then the Author must, at the request of Dymocks, repay all monies paid by Dymocks. On repayment of all monies this agreement terminates and the rights granted to Dymocks revert to the Author.”
In my opinion, the Publishing Agreement with Dymocks on the D Publishing website is very Dymocks-driven and not particularly author-driven, unnecessarily prohibitive for authors, and not internationally competitive with options like Amazon’s CreateSpace for print-on-demand books (with well-established non-exclusive global distribution and without expensive set-up costs) and a range of ebook options.
If any key people from D Publishing/Dymocks are reading this, I have nothing against Dymocks (or publishers or booksellers, big or small). This is in no way any sort of political issue for me, nor associated with any sort of author advocacy cause. I think this is a terrible contract for authors and it is the decent thing to do to warn people about what they may be considering getting into. I hope you take this opportunity to rewrite the Publishing Agreement and provide a more stable business proposition for authors.
Good luck to the Dymocks staff, franchisees and shareholders not involved in writing and approving the D Publishing agreement. If anyone wants questions answered or wants to make a comment to D Publishing/Dymocks regarding the issue, I suggest visiting their Facebook pages at D Publishing and Dymocks. The people working at your local Dymocks book store may have had no involvement and may also be unaware of what’s in the agreement. They also have an email address email@example.com
– Steve Rossiter
The only substantive change to the original Publishing Agreement seems to be the limited ability for the author to self-distribute a book published by D Publishing through sales channels not of interest to Dymocks for any of their books, and must stop if Dymocks becomes interested in those sales channels for any of their books. The author is prohibited from working with a distributor to do this.
On their Facebook page, D Publishing cited the reason for the second agreement as to make things clearer following questions and comments received so far. The issues people are discussing are substantive issues of what is actually in the agreement; not a comprehension issue.
The Australian Literature Review