Will author contract reform succeed this time?

Will author contract reform succeed this time?

'Can you hear me now?' 

A not-so-funny television commercial a while back gave us that line with maddening repetition as we watched a hapless mobile phone customer wander through his world in search of a decent connection. 

The line might work today for authors, agents, and others who are becoming increasingly frustrated by the "silence of the trads," as we sometimes call it, over contract reform. 

This story was written as the walkup to the #FutureChat of 10th July. Join us today and every Friday for #FutureChat live on Twitter at 4:00 p.m. London (BST), 3:00 p.m. GMT, 5:00 p.m. Rome (CEST), 11:00 a.m. New York (ET), 10:00 a.m. Chicago (CT), 9:00 a.m. Denver (MT), 8:00 a.m. Los Angeles (PT), 5:00 a.m. Honolulu (HAST).

Our question today for #FutureChat — and do join us — is whether we might just be about to hear a crackle on the other end of the line and a distant voice say, "Yes, we can hear you." I'm quietly getting the word out, too, that we'd be particularly pleased for any agents interested to come along today. The agenting community has, for obvious reasons, been on the front lines of this challenge for a very long time and, collectively, has a wealth of experienced knowledge of what's happening. Do you have an agent? Invite her or him to #FutureChat.

And why might we be getting closer to seeing a change in contractual norms? Because the digital dynamic brings a new player into the room of this long-running debate: the reader.

You may see folks in #FutureChat today saying that readers cannot be made to take an interest in their authors' welfare. A lot of others disagree. What almost no one will try to say is that if consumers' attention can be snagged on this issue that those readers are likely to side with publishers. Because readers relate most directly to their authors, this is the kind of issue in which public sympathy probably can be predicted. 

And the reason we're taking this one up for #FutureChat this week has to do with the timing in both the US and the UK of some very public efforts to raise the visibility of the dilemma. 

In the The Bookseller yesterday, we reported on Carnegie Medalist author Philip Pullman throwing his support behind the Society of Authors' new call for a review of laws applicable to "creator contracts." As our Charlotte Eyre wrote it up:

Pullman urged publishers to comply with the SoA’s recommendations, which include proper accreditation and remuneration, saying “it's not always easy [for authors] to see our way through the thickets of legal language that grow so vigorously around the commercial exploitation of our work, nor to know how our own position with regard to our rights compares with others”.

At the Society of Authors' (SoA) site, you can see the organisation's own write-up of chief executive Nicola Solomon's commentary on contracts, made at the All Party Writers Group Summer Reception. If you haven't seen it yet, this is where  you can go over the SoA's use of the word "creator" to lay out a "magnificent seven" contractual issues that the authors believe are most urgent for attention. I'll have them for you in a moment.

But first, look next at the United States' counterpart, the Authors Guild (AG) site. Here, you see the first in a long series-to-come of extensively parsed issues in author contracts, and the headline makes the Guild's starting point unmistakable: Half of Net Proceeds is the Fair Royalty Rate for eBooks.

At The Bookseller today, my colleague Philip Jones is reporting, in Authors Guild demands 50% ebook royalty, that Solomon has endorsed the Guild's stance:

We agree with the Authors Guild initiative for the reasons they explain so clearly.

Jones adds, "Some publishers dismiss the notion of a 'standard' rate arguing that existing contracts are already flexible."

As brief background on the Guild effort, what we're seeing is, in part, the effect of new management. While many authors remain sharply critical of the Guild's past performance, the polarising years of Scott Turow's leadership have given way to the installment of a new executive, the creative-rights attorney Mary Rasenberger, and a new president, the author Roxana Robinson. And they have mounted the Guild's new Fair Contracts Initiative, which may leverage its greatest power by putting detailed, potent talking points into the hands of authors who can communicate them to their readers in ways that simply weren't doable pre-digital.

Some scoff at this, saying that readers don't care about their authors' working conditions. Others of us are more careful: when beloved-brand authors can tweet to their readers the fact that ebook royalties remain at only 25 percent, it's by no means clear yet that those readers won't care. You might recall our mention of a Hay Festival appearance by the author Ali Sparkes for BBC Radio 4's Front Row in which she told the audience that her income from a book's sale was less than a single pound. It would be unwise to underestimate how well that kind of revelation can be understood, and questioned, by readers.

This kind of public discussion is not the same old same old, either. Authors have not, traditionally, spent a lot of public-appearance time talking about their plight in the marketplace. That seems to be changing.

And if there's anything the publishing industry's traditional powers really don't need, it's the embarrassment of being seen to be less than generously supportive of their authors: the prime interface with the marketplace. They're fully up to speed on public chatter about the importance of their authors, you notice. The day may be coming on which they need to put their money where their PR is.

Another way to put today's #FutureChat issue then: How much egg does the industry want to wear on its face? Let's look at our tale of two author-advocacy efforts.

At the Society of Authors: The CREATOR guide

Whether these devices work is always a question, but the SoA has made a decision to widen its purview to "creator contracts," perhaps cleverly pulling in the wider creative-industries community for a broader base of public exposure. 

They break down their introduction of legislation on what they see as unfair contract terms this way: 

C - clearer Contracts, including written contracts which set out the exact scope of the rights granted.

R - fair Remuneration. Equitable and unwaivable remuneration for all forms of exploitation, to include bestseller clauses so that if a work does far better than expected the creator shares in its success, even if copyright was assigned.

E - an obligation of Exploitation for each mode of exploitation, also known as the 'use it or lose it' Clause: fair, understandable and proper Accounting clauses.

T - Term. Reasonable and limited contract terms and regular reviews to take into account new forms of exploitation.

O - Ownership. Authors, including illustrators and translators, should be appropriately credited for all uses of their work and moral rights should be unwaivable.

R - All other clauses be subject to a general test of Reasonableness, including a list of defined clauses which are automatically deemed to be void and a general safeguarding provision that any contract provision which, contrary to the requirement of good faith, causes a significant imbalance in the parties' rights and obligations arising under the contract to the detriment of the author shall be regarded as unfair. One example would be Indemnity clauses which put all the risk on the author. She pointed out that publishers are holding on to moribund rights which authors could exploit more effectively, creating income for themselves and the British economy. She cited the example of Catherine Gaskin, where the out-of-print titles have been reverted to the SoA and are now earning over £7,000 per year.

While the SoA site seems to have a broken link at the point it offers Solomon's full speech, she is excerpted saying something that dovetails well with the corresponding effort in New York:

Authors are not in a strong negotiating position. Publishers are often large multinationals while authors typically work alone. Especially at the start of their careers they may have little or no advice and are thrilled to be offered publishing contracts.

This is a potent theme: the author, particularly when new to the business and perhaps unagented, should not — say advocates — have to somehow divine the legal traps of contracts ostensibly handed them by well-intentioned publishers. The Authors Guild is playing this point with particular effectiveness.

At the Authors Guild: Are publishers' contracts deceiving authors?

Why do publishers insist on offering their newest partners more than a hundred conditions so dubious that they’ll quickly back down on them if asked?

What the Guild is saying is that unagented authors, in particular, do not know to ask for one or another standard-contract point to be changed or waived, do not know that if they did ask for that change or waiver, they'd get it. Why, then, asks the Guild, are publishers placing such pitfalls in the path of their authors?

I have covered the Guild's new Fair Contracts Initiative twice now, in  A Digital Picket Line: The Authors Guild Would Like Your Attention and in Writers And Their Business: Don't Assume It's All for One. The reactions I get to such coverage from some in the authors corps make it clear that the Guild has a long way to go in regaining trust lost under its previous administration. Its biggest hurdle may not be elucidating its Fair Contract Initiative points but in persuading authors of its good intentions and capability.

But when authors do engage with the programme, some useful input is the result. For example, the British-born, Chicago-based historical fiction writer Jane Steen, a regular #FutureChat voice, gets into comments on the first of these articles to say:

Why do authors let themselves be drawn into unfair contracts? Because the majority of them don't take the time to learn about the publishing business. I do know traditionally published authors who have a very good grasp of the business they're in, but I also encounter astounding ignorance. The most knowledgeable people I've met, ironically, are self-publishers who've been working at their trade for a while. They're savvy because they have to be. Many traditionally published authors don't feel that pressure because they feel like they're being looked after. They learn how to read a contract or a royalty statement when something goes wrong.

And as the Guild rolls out its successive specific-point articles in its Fair Contracts Initiative, authors probably have one of the best chances in recent times to address holes in their own understanding of what's happening — and to learn ways to communicate what they learn to their readerships. The article just released by the guild on the ebook royalty rate, for example, details the reasoning behind the widely proposed 50-50 split on ebook profits:

Today’s standard contracts give authors just 25% of the publisher’s “net receipts” (more or less what the publisher collects from a book sale) for e-book royalties. That doesn’t look like a partnership to us. We maintain that a 50-50 split in e-book profits is fair because the traditional author-publisher relationship is essentially a joint venture. The author writes the book, and by any fair measure the author’s efforts represent most of the labor invested and most of the resulting value. The publisher, like a venture capitalist, invests in the author’s work by paying an advance so the author can make ends meet while the book gets finished. Generally, the publisher also provides editing, marketing, packaging, and distribution services. In return for fronting the financial risk and providing these services, the publisher gets to share in the book’s profits. Not a bad deal. 

The piece then goes on to look at the evolution of ebook rates from the mid-1990s' first provisions in contracts. The rise of ebooks' place in adult trade sales, of course, has deepened the impact of the format on revenue, and, in the Guild's interpretation, this has made the unchanging royalty rates increasingly unfair. Indeed, the Guild cites Most Favoured Nation clauses in contracts, a topic treated here at The FutureBook on the retail level recently by Andrew Rhomberg.

Taking into account effects of Amazon-led discounting in ebooks, the Guild's position is that while publishers' "e-gains" have diminished some since 2011, "the author's share has fallen even farther." And the Guild arrives at this place, with a shout out to "established authors and, particularly, bestselling authors" to take up the cause:

It’s time for a change. If the publishers won’t correct this imbalance on their own, it will take a critical mass of authors and agents willing to fight for a fair 50% e-book royalty. We hope that established authors and, particularly, bestselling authors will start to push back and stand up to publishers on the royalty rate—on behalf of all authors, as well as themselves.

And there's our question to you for today's discussion: Is it "time for a change"? Has the debate worn on long enough? Can the widely touted new community between authors and their readers in the digital space be directed to protest what these author-advocacy agencies say are unfair contracts that simply must be reformed? 

See you in #FutureChat.

Join us today and every Friday for #FutureChat live on Twitter at 4:00 p.m. London (BST), 3:00 p.m. GMT, 5:00 p.m. Rome (CEST), 11:00 a.m. New York (ET), 10:00 a.m. Chicago (CT), 9:00 a.m. Denver (MT), 8:00 a.m. Los Angeles (PT), 5:00 a.m. Honolulu (HAST).

Main image - Pixabay: DelphinMedia