Is 'out of print' outdated?

<p>This summer a blistering row over rights kicked off between Simon &amp; Schuster US and American authors&#39; body The Authors Guild.</p><p>Traditionally, an author can ask for rights to revert to them if a book is out of print, and is therefore no longer selling. But S&amp;S decided that a book would not be deemed to be &quot;out of print&quot; so long as it was available in any edition, including electronic editions. So, if a copy could be downloaded from the internet, or was available through print on demand, an author would not be entitled to seek a reversion of rights even if no copies were being sold.</p><p>The Authors Guild reacted with outrage, recommending that authors exclude S&amp;S from auctions until it backed down. The issue then spread to the UK, with S&amp;S US indicating that its UK subsidiary would follow its parent&#39;s lead in extending its author contracts.</p><p>S&amp;S eventually backed down, and agreed to amend its standard author contract so that rights would revert back to the writer when revenue dips below a certain threshold. &quot;We agreed with S&amp;S that a book has to earn a certain amount for it to be deemed &#39;in print&#39;,&quot; says Paul Aitken, The Authors Guild executive director. &quot;This has been in place in contracts since June.&quot;</p><p>But the issue is far from resolved. While S&amp;S has implemented a minimum revenue threshold, agents and authors are vehemently advocating a threshold based on numbers of copies sold.</p><p>&quot;It remains very much a live issue for agents,&quot; says Association of Authors&#39; Agents president Clare Alexander. Aitken agrees: &quot;Retaining rights to their work is a big issue for authors, and not one they are going to give up on. If a publisher tries to do this, it&#39;s a huge issue for authors and agents.&quot;</p><p>And it is not only S&amp;S which is reviewing its standard contracts. &quot;All the big corporates are, to a greater or lesser extent, trying to hang on to rights in perpetuity,&quot; says a senior agent.<br />The UK&#39;s Society of Authors, along with British agents, has been arguing that in the light of technological developments, new reversion clauses need to be agreed, under which an author can terminate a contract if sales fall below certain agreed figures over any two royalty periods. The author body says &quot;recent informal discussions&quot; with British trade publishers have indicated that they accept the need for reversion clauses to be reconsidered.</p><p>The Random House Group, for example, is working with two undisclosed agencies to develop a new framework for its author contract which it hopes will be more suitable for the digital world. These discussions are covering the issue of rights reversion, with Random advocating a shift to a minimum revenue threshold rather than minimum stock levels.</p><p>Ian Hudson, deputy chief executive of the Random House Group, says: &quot;We don&#39;t comment on specific discussions, however, it is true to say that we have been talking to some agents about modernising our contracts and making them mutually fit for purpose in a&nbsp; modern publishing environment. The agents we are working with fully accept the need for change and discussions have been held in very good spirit.&quot;</p><p>He continues: &quot;Random House continues to view reversion clauses as an important mainstay of publishing agreements. Authors need to have confidence their books are both available and being actively sold so that they are earning income from their backlist. However, the advent of new technology and the increasing importance of environmental issues means that reversion clauses that demand minimum stock levels now appear positively Dickensian.&quot;</p><p>Hudson points out that modern printing technology permits ultra-short-run printing, including true &quot;print on demand&quot;, and says that it should be fully embraced by publishers, agents and authors alike. &quot;Titles remain available, can continue to be actively sold and thereby earn royalties for their author. E-books will over time become an additional generator of royalty income. Logically therefore, it would seem that reversion criteria should relate to minimum levels of royalty earnings, combined with a publisher&#39;s commitment to actively sell the author&#39;s work through all relevant channels.&quot;<br /><br /><strong>On digital demand</strong></p><p>The issue boils down to how and when a book is defined as &#39;out of print&#39;. In a digital economy, where it is possible to print single copies of books on demand, and where electronic versions of books are becoming ever more widely available, the concept is becoming increasingly difficult to pin down.</p><p>At the moment, the warring factions largely fall into two camps: those who advocate a reversion clause based on the number of copies sold (largely authors and agents), and those who back a minimum revenue threshold(largely publishers).</p><p>Thresholds typically start at around 100 copies or &pound;100 in six months, depending on the popularity of the author, before they are able to revert rights.</p><p>Those in favour of a rate-of-sale clause are adamant that it is the best way to measure if a book is still selling, claiming that minimum revenue is open to abuse. &quot;The only valid way of measuring whether a book is effectively still &#39;alive&#39; in the marketplace is by considering how many units it sells in any 12-month period, whether it is a physical book or a download or print on demand,&quot; says Jonny Geller, m.d. of Curtis Brown&#39;s book division. &quot;Doing it on a monetary level only is madness; $1,000 [and &pound;500]&nbsp; as the benchmark won&#39;t buy many books in 10 years&#39; time. As it stands, it is also vulnerable to misuse.&quot; Alexander adds: &quot;Rate of sale is what we want rather than a level of income. That would vary hugely according to the number of rights bought.&quot;</p><p>Those on the other side of the fence include Ian Chapman, m.d. of S&amp;S UK, who says that a revenue-based threshold is &quot;an easier, more transparent measure&quot;. Bloomsbury&#39;s new&nbsp; executive director Richard Charkin also believes the rights reversion clause should be linked to revenue, but he is adamant that rights reversion is still a valid concept.</p><p>&quot;The outdated concept here is &#39;out of print&#39;,&quot; he says. &quot;Out of print can be defined in so many ways, typically having a certain number of copies in a warehouse. But is the number of copies in a warehouse of any relevance in the world of on-demand and digital delivery? And which warehouse is it? How do you know what copies are lurking in Indonesia?&quot;</p><p>&quot;The question is: how do you devise an alternative trigger to define &#39;out of print&#39;?, and that&#39;s where you run into all the problems. It should be something related to revenues,&quot; he says.<br /><br /><strong>Rights reversion rewrite</strong></p><p>At the moment, the argument over rights reversion is largely one of principle. &quot;The only times it tends to come up as an issue is if, out of the blue, a major movie is going to be made of the book, and also if the author is moving their frontlist titles [to another publisher] and wants to move backlist with them,&quot; says Penguin m.d. Helen Fraser.</p><p>&quot;It doesn&#39;t make much sense to revert rights unless you can do better elsewhere,&quot; agrees A P Watt director Derek Johns. &quot;The real question with rights reversion is where else can you go? It&#39;s unlikely that another publisher can do anything else.&quot;</p><p>Like Fraser, Johns acknowledges that one situation where rights reversion will come into play is if an author is moving to another publisher who wants to repackage the backlist. &quot;That&#39;s an instance where it is useful to involve the reversion clause. There&#39;s no doubt a new publisher can bring new energy to the backlist.&quot;</p><p>Mark Le Fanu, Society of Authors general secretary, says: &quot;It is a debate on a point of principle that is unlikely to make much difference in practice in the vast majority of cases.&quot;</p><p>But as print on demand becomes a more viable option for publishers, the issue of rights reversion is only going to become more pressing. Agents point out that, at the moment, publishers are spending money hand over fist on digital issues, but are as yet reaping very little return on their investments. Holding onto rights is one way to protect themselves.</p><p>&quot;All publishers at the moment are seeing income going out on digital and are trying to cover themselves,&quot; says one agent. &quot;Once one of these things takes off we will all follow the money, but at the moment it&#39;s all conjecture. We just need one model to work,&quot; adds Geller.</p><p>Penguin, which operates both monetary and rate of sale thresholds for rights reversion, is currently exploring print on demand &quot;vigorously&quot;, says Fraser. The publisher has about 250 to 300 titles&mdash;mainly classics&mdash;where it will print up to 300 copies of a book in short-run printings. &quot;We&#39;ve been doing it for two to three years and it&#39;s been very successful,&quot; she says. &quot;It&#39;s as close as we&#39;ve got at the moment to realising print on demand, but we are actively exploring it.&quot;</p><p>Johns is adamant that print on demand editions will change the landscape of publishing. Chapman agrees: &quot;The new digital world we live in provides much more opportunity in terms of selling and exploiting. It produces different channels to spread the word. We want to reflect the new world. It&#39;s beholden on us to protect ourselves and to exploit rights through as many means as we possibly can.&quot;<br /><br /><strong>Top-level debate</strong><br />Charkin believes the issue is one that has to be resolved by the book industry&#39;s trade bodies rather than by individual publishers. &quot;It needs to be debated at a Publishers Association level rather than a publisher level,&quot; he says. &quot;The emergence of print on demand is changing the game, and we&#39;re all agreed there needs to be changes,&quot; agrees Le Fanu. &quot;But there is no argument to say rights reversion is out of date.&quot;<br /></p>