D Publishing by Dymocks Books – AUTHORS BEWARE

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 (There was a page that could be linked to directly yesterday but this has since been replaced by a PDF download initiated by scrolling down and clicking on Publishing Agreement in the menu at the bottom.)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 dpublishing@dymocks.com.au

– 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
www.auslit.net

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38 Responses to D Publishing by Dymocks Books – AUTHORS BEWARE

  1. Pingback: ‘The People’s Publisher’ – Launch of D Publishing « Digireado

  2. ebonymckenna says:

    Thank you for taking the time with this. All authors should read their contracts carefully and make sure they understand what they’re getting into. There can be big risks in the small print.

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  6. Fiona Place says:

    Thanks for this – while I use CreateSpace I had thought this may be a useful alternative – but after reading your post it certainly appears an unattractive propsition

  7. jaqhama says:

    There’s not a literary agent in the world that would let a client sign this contract with Dymocks.
    I just see it as a money spinner for Dymocks, working off desperate authors dreams to get a book in print.
    I think Dymock’s are looking pretty pathetic right now.
    Lulu and Lightning Source don’t require an author to sign away his rights forever.
    And 90% of D Publishing books are never going to sell anyway, I suspect.
    The lack of editing by a pro editor or publisher will soon become apparent to even the most undiscerning reader.
    My guess is it won’t be long before Dymocks start to offer (for a fee) the services of an editor and some spiel about edited novels getting pride of place on their D Publishing book shelf.
    Then there will be another fee for a professional artist to design your front cover. Etc Etc.
    One can see the various money making scenarios so easily they are transparent.
    This is so close to vanity publishing it’s not funny.
    Money flows to the writer, the writer doesn’t pay anyone to have his work published.
    The various ebook platforms (such as Kindle) are looking more attractive for aspiring authors every minute.

  8. Oscar says:

    Where does it say the stuff about movies and sequels?

    “If Dymocks decide your novel does not have movie potential, then no movie. If Dymocks decide there should be no sequel, then no sequel.”

    I can’t see anything in the link about that.

    ????

    • auslit says:

      The original version was much more explicit about mentioning things like movie rights. In the new version of the Publishing Agreement, the content remains the same but the wording is more elusive.

      The following catch-all clause grants Dymocks control over all subsidiary rights. This includes sequels and film/tv adaptations.

      “The Author grants to D Publishing a licence:
      […]
      to exercise, including by way of sub-licence, all rights in the Work other than its first volume and electronic publication rights (Subsidiary Rights).”

      The listing of some subsidiary rights following that could be considered misdirection. It is prefaced by: “Without limiting the preceding, Subsidiary Rights include:”

      So, regardless of which subsidiary rights are then listed, the author still grants Dymocks a license to exercise all rights in the Work other than its first volume and electronic publication rights. According to other parts of the agreement, this license applies worldwide, lasts for the duration of the copyright, and cannot be terminated unless the author can prove Dymocks broke the agreement (and they can change anything in the agreement by putting an amended agreement on their website).

      Since all subsidiary rights worldwide for the duration of the copyright have been licensed to Dymocks, the author does not have the right to make use of any subsidiary rights independently of Dymocks. At least not in “the territory of the world”; they may be able to outside the Earth’s atmosphere or on another planet, depending on the interpretation of “the world”.

  9. Thank you for blogging about this information … Sharing this link to my facebook author page … Karen Tyrrell author.

  10. We’ve also alerted our members to the issues regarding the D Publishing contract. When it comes to being an independent author, there are numerous benefits these days: control, rights retention, time-to-market, global distribution channels, a lot of enjoyment and satisfaction etc. The D Publishing contract on the other hand, is a rather odd construct with terms and conditions that offer nothing of benefit to authors. You may as well give your manuscript to the man on the street to do with it as he wishes.

    If authors are looking to outsource aspects of the publishing process to others, rather than do it all themselves, there are many other viable options, like CreateSpace and Lulu as mentioned in other comments.

    Bottom line – authors, be informed – do your research, make comparisons, check with organizations like our own before signing on the dotted line.

  11. John Bryson. says:

    With what spin does Bob Carr justify this?
    John Bryson.

  12. Jaqhama says:

    What did I say before…this from the Dymock’s D-Store webpage:

    “Improve My Book

    Shortly after launch, D Publishing will start giving authors access to a network of designers and editors, who will be available to help authors refine and improve their manuscripts. Authors will also soon be able to make pre-published drafts of their books available to Dymocks’ network of passionate Booklovers for direct and private feedback.”

    That ‘help’ is going to cost aspiring writers dollars. As I predicted.

    I emailed Editors and Preditors about the D-Store contract and they weren’t impressed either.
    I make a further prediction that as the weeks go by and the D-Store contract is bandied around amongst authors and websites/blogsites Dymocks will start to re-consider and probably change their contract inclusions.

    E&P suggested that Dymocks have just perused the Internet and read what other POD companies are doing and made up their own POD contract without putting a lot of thought and effort into it.

    Here’s a tip for anyone thinking of using Lulu to POD…Lulu uses Lightning Source to print their books for them, so it’s cheaper for the author himself to go straight to LS and bypass the middleman.

    Cheers: Jaq

    • digireado says:

      From what I have heard directly from Lightning Source they do not deal directly with authors, only publishers. I’ve emailed them twice this year and received the same reply.

      • Jaqhama says:

        I think people register as a publisher then upload their books for POD.
        You might want to check that aspect of LS out.
        Maybe here:

        http://www.selfpublishingcommunity.com/features/self-publishing-with-lightning-source

      • digireado says:

        Thanks for link below. I figured there must be a way around it but wasn’t sure how exactly. Think it’s still odd that although specifically telling them I was trying to find out for self-publishers they still gave me the same standard line both times!

      • Yeah Lightning Source are a bit strange like that. They will not help you at all to set up your book, so you need to know what you are doing. (A file for you book and another for your cover). A bit of research and it is not that hard, ISBN, Book Deposit laws ect. But once you use them you would never go to Dymocks. I have only written one book so far (Love Letters from the Bar Table) and will continue to use LS for future books. They have a site in Melbourne now as well.

  13. Lisa says:

    Great article, however you fail to appreciate that changes were made to the agreement.

    D Publishing in my eyes is a fantastic technical tool for authors who would otherwise not get through the literary agents gatekeepers. Its a new concept in bookstore publishing and as such there will be glitches. Good for you for finding them! And Great for Dymocks for making the necessary changes.

    I wonder if this article is written for the intents and purposes of stopping authors from self publishing?

  14. How disappointing. I’ve heard that Penguin’s self publishing branch is equally dodgy.

  15. auslit says:

    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. :)

  16. Jaqhama says:

    Any book deal where the author pays a company to print or publish his or her book is a bad deal.
    It’s vanity publishing and that’s all there is to it.
    I’m not against POD by any means, but POD and vanity publishing are two different things.

  17. Jaqhama says:

    Dymocks responds to critics of their publishing contract:

    http://www.booksellerandpublisher.com.au/articles/2011/12/22310/

    Be nice if publishing companies spelt out their contracts in plain and simple english like Amazon does.

  18. Jaqhama says:

    ” ‘This process has helped us understand how technical legal contracts can be interpreted out of context,’ said Allara”

    I’m sure the majority of us had no trouble working out the ‘technical’ aspects of said contract.
    We’re writers remember. Words and the interpretation of them are our business.

  19. auslit says:

    In the Bookseller + Publisher article you have linked to above, publishing consultant Alex Adsett is referring to what is expressed in the Publishing Agreement and Dymocks General Manager of eCommerce Michael Allara is referring to the intentions of Dymocks (or their intentions as he claims them to be) beyond what is actually expressed in the agreement.
    However, authors entering a contract relying on a lot of assumptions about the supposed intentions of a publisher/distributor/​agent/retailer is problematic. When I spoke to Michael yesterday, we discussed how to amend the agreement to better reflect what he told me their intentions are. Hopefully the newly worded Publishing Agreement will much more clearly express the intentions which Michael discussed with me.
    Unless or until then, according to the wording of the agreement, many of the points mentioned by Michael would only be possible for an author by permission from Dymocks, granted outside of the agreement itself.
    As I wrote last Friday, the concerns are with the content of the Publishing Agreement; they are not a matter of comprehension. I’m sure many authors are capable of comprehending the content expressed in the agreement.

  20. Pingback: Could this be Australia’s worst publishing contract? And bookselling icon Dymocks is behind it.

  21. Jaqhama says:

    Thought I’d better post this here as well:

    I’m guessing that a lot of authors are not aware that even if they do not have an agent to represent them when dealing with a publishing contract they can always hire the services of an Intellectual Properties lawyer.
    IP lawyers are now being utilised by many authors. And the IP lawyer works for you. He or she has no affiliation with either the publisher you’re considering signing with or an agent that you might have submitted a manuscript to.
    I understand that a lot of new authors might think that an IP lawyer is an added expense in their goal of being published, but it’s quite possible that in the long run it might be a wise investment.
    An IP lawyer will be able to advise you of what you should, and should not, be signing away in a publishing contract.

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  25. auslit says:

    The following article, featuring an interview with me, recently went up on Crikey book blog Liticism:

    http://blogs.crikey.com.au/liticism/2011/12/21/authors-beware-interview-with-steve-rossiter/

  26. Pingback: Authors Beware’: Interview with Steve Rossiter editor of The Australian Literature Review on the D Publishing saga | Books at fanseyeview.com

  27. Pingback: Dymocks D Publishing – An Opportunity Being Wasted | The Australian Literature Review

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  29. brian says:

    I was most disturbed by the issues you brought up and disappointed as I have written a book and sold nearly 1000 myself (given over 50 talks) and it has not been advertised once but would have preferred to hand over to to an agent – BUT how to I find an honest agent??
    Brian

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