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Basic book contracts should grant a fixed-term licence in a book rather than rights for the length of copyright, agent Peter Straus has said.
But publishers have argued that such a change would hit advances and damage their ability to invest in titles.
In an opinion piece written for this week’s The Bookseller, Straus, m.d. of Rogers, Coleridge & White, and president of the Association of Authors’ Agents, argued that defining a book as being in print if it is available “through all normal sales channels” is “now too loose and ill-defined” because of digital and print-on-demand advances, saying: “It seems only by re-introducing a limited licence will an author ensure that his book’s life is finite with a particular publisher.” Limited licenses are used in many European countries, Straus pointed out.
Curtis Brown m.d. Jonny Geller agreed with his argument, calling current standard contracts “anachronistic” and “15 years out of date”. He said: “The obvious argument is that publishers are making an investment, so they would have to have that re-evaluated, which would be difficult. But many other industries do have licence periods for the exploitation of intellectual property, and just because it has always been like this it doesn’t mean it should continue.”
Eugenie Furniss of Furniss & Lawton called it “an interesting idea”, commenting: “What constitutes an out-of-print book is definitely becoming harder to define, and it’s usually the author left in the weaker position, not the publisher.” But she added: “I think we’d have a battle on our hands to make it a reality.”
Publishers contested the idea, sometimes vigorously. One publisher, who preferred to speak anonymously, said: “It’s a choice. If Peter Straus would like to insist on limited license, he’s perfectly entitled to do so. At our publishing house, we always acquire rights for the term of our contract, that’s our policy.”
Picador publisher Paul Baggaley agreed that the definition of what constitutes an out-of-print book was becoming harder to define, and that “contracts do need to adapt to those changes”, but warned that the license model left publishers without “the buffer” of valuable backlist sales and could result in fewer new writers being taken on. He added agents would also need to be “willing to accept a significantly lower advance”.
OneWorld publisher Juliet Mabey said: “Publishers often have to invest a great deal of time developing a book editorially, and also invest in publicity and marketing to launch it, and this can be the critical factor in achieving bestseller status for a book. Agents are rarely asked to invest in their authors to this degree, so my question would be: if publishers should have a fixed-licence period in which to control rights in a book, should agents as well?”
Society of Authors deputy general secretary Kate Pool said: “My biggest concern is that publishers’ contracts have out-of-print clauses that don’t make sense in a world where it costs publishers practically nothing to make a book available to people. When something is selling absolutely fantastically two years after publication, it is quite obvious what authors are being paid might need to be re-addressed. Those problems disappear if you have a finite licensing period.”
Bloomsbury executive director Richard Charkin commented: “One thing that would improve things enormously would be to cease linking royalty rates to a price no one pays—the retail recommended price—and base it on publishers’ net receipts instead. That would be a positive step in improving systems, simplicity and transparency.”