Deal with the Devil – Ebooks and Exclusivity

So I’ve been thinking a lot lately about exclusivity when it comes to ebooks. Self-publishing mavens Joe Konrath and Barry Eisler, in one of their increasingly long but still interesting chat logs, recently discussed the decision by Eisler to sign his ebook rights exclusively to Amazon; a decision he decided to make almost entirely on the perceived economic benefits. JK Rowling is making her books available exclusively through her own portal, Pottermore, and cutting out all the ebook vendors. And then there’s the post by Ginger Clark, an agent with Curtis Brown US, who wrote in Publishing Perspectives a week or so ago warning authors against global deals, espousing the potential gains authors can make by diversifying their rights around the world, ensuring that their books have publishing people on the ground in each territory they sell to who understand each market.

So who’s right? Is it better to sign a deal with an ebook publisher (or vendor) who can deliver your book to a worldwide market as one unified whole, or are you better off splitting your rights into portions and selling them separately everywhere? Is there any other option? Or is this even a choice open to most writers in a world where selling rights is more difficult than selling books?

Personally, I can see the benefits of Ginger Clark’s argument. If you can get multiple deals around the world, then you get multiple advances and marketing teams based on home turf. The problem with territorial fragmentation of ebooks is that it disadvantages the author until a book sells in a particular territory, particularly those in Australia, which has a relatively small local market. For example, an Australian author with an Australian publishing deal will generally have their ebook rights restricted to sell in Australia only – unless they have publishing deals in other territories. But there’s no reason why an Australian publisher shouldn’t make an Australian author’s ebooks available globally (and non-exclusively) until an exclusive deal has been struck with an overseas publisher.

The received wisdom from agents about this setup is that having an ebook for sale in a territory makes it almost impossible to convince an overseas publisher to buy the rights, but I’m yet to hear any evidence, anecdotal or otherwise, of this actually taking place. (Though please do chime in if you have some – I’m intensely curious!).


The UK, Australian and US covers of Unearthly by Cynthia Hand.

Gosh, English-speaking markets really are completely foreign to each other.

It’s in an agent’s interest to chase advances rather than individual ebook sales, and in a publisher’s or ebook retailer’s interest to maximise sales – so it’s difficult to see where the sales pitch ends and the actual sales begin. Nonetheless, I do wonder whether authors are even going to have a choice in a shrinking Australian market. It’s going to be increasingly difficult to get a local publishing deal, and perhaps even more difficult to find an international deal on top of that. Are authors limiting themselves to Australia in the vain hope of securing a big advance overseas just deluding themselves and losing potential sales in the meantime? Or is this just sensible business practice, and I’m being a digital ideologue? Sound off in the comments and let me know what you think.

Why Nobody Blames Authors (And Why You Should)

Whether it’s geo-restrictions, digital rights management (DRM), ebook pricing or ebook quality, it’s rare to hear a reader blame an author for the state of an ebook (unless it’s self-published, of course). And I can see why. Authors are the public face of what readers love about books. They are the creative geniuses behind all the amazing books you’ve ever read. And it’s not just that. Writing books is really hard, and most authors only do it for the love of it.

It’s for these reasons and many more that the last thing we want to do is hang all the things we hate about ebooks on our favourite authors. Especially not when there are publishers, agents and ebook vendors who perform that role very well indeed thank you very much. None of this, however, changes the fact that a big chunk of the blame for why the publishing industry is as slow-moving, old-fashioned and afraid of change as it is lies at the feet of authors. I’ve written before about the Luddite nature of most book editors. But that’s nothing in comparison to authors. Nobody talks about the smell of books more than traditionally published authors. Nobody is more wedded to the comfortable, cyclical traditional publishing model than authors. Most authors love book launches, writers’ festivals, tours, publicity and going into physical bookstores to sign copies of their books for their fans, despite what JA Konrath might say. A huge chunk of authors either support DRM or don’t know what it is, despite the fact that most authors have more direct contact with their readers than their publishers. Many authors don’t care about ebooks, or are afraid of them, and certainly don’t read ebooks themselves.

And then there are the digital holdouts. Publishers don’t like to talk about them, because at the end of the day, most publishers would prefer to protect their authors and keep selling their books than drag their names through the mud in order to deflect the blame. But there are more than a few authors out there who don’t want to sell their books as ebooks at all, and refuse to make them available out of fear, snobbery or greed. Some of them are very big. JK Rowling is perhaps the most high-profile of these, but there are others. Some of them are even Big and Fancy Australian authors.

The fact of the matter is, the reason many of the annoying things about the publishing industry exist are to protect or promote an author’s copyrighted material. Many of these things are not bad at all for authors. Geo-restrictions, as frustrating and exhausting as they are for global ebook readers, are the result of authors protecting their copyright. Authors have the right to sell their copyright in different countries to different companies. Those companies are sometimes in direct competition with one another. This means authors get better deals, are treated better and are publicised and distributed more widely than they would otherwise be if they were sold globally by one single company.

So next time you start working yourself up into a rage about the greed of publishers, agents, retailers and all the other ‘middle men’, ask yourself what the author you love has to gain from the situation they are in. If self-publishing ebooks were as easy and inevitable as it is often made out to be, why aren’t there more authors who are self-publishing ebooks without DRM at super-low prices? The answer is simple: because they’re getting as much out of it as their publishers.

And if you’re a traditionally published author reading this and thinking, ‘That’s not me! I love my readers! I want my ebooks sold at $0.99 without DRM internationally!’ Then please, comment below. And more importantly, speak to your publisher. Educate yourself about ebooks and digital publishing, and you can take advantage of the changes sweeping the reading world. Because ultimately it’s your book, and you get to decide how it reaches your readers.

Where in the World is Lisbeth Salander Pt 2

In my last post I wrote about the issues facing ebook distribution in Australia as it pertains to territorial copyright and parallel importation. To recap: the current situation is that if I want to buy an ebook that is published by a US or UK publisher in Australia it is more than likely impossible. I can buy the Australian version of that ebook where it is available, but I cannot (except in the very rare case where the overseas publisher owns worldwide digital rights) buy the overseas version, even when that ebook is not published electronically by an Australian publisher. Even when the ebook’s Australian rights have not been purchased at all, it is still more than likely impossible to buy that book in Australia. This all despite the fact that I can buy any paper book from any publisher anywhere in the world and have it posted to my front door.

It’s a very complicated issue that faces all publishers worldwide. In fact, it is an ongoing issue with all producers of digital content. Digital TV streamed overseas through services like Hulu and the BBC’s iPlayer are not available in Australia at any cost. Music services like Spotify and Pandora are also not available here due to territorial copyright restrictions. There is no obvious solution to this problem, but in this post I’ll cover some of the reasons why this occurs.

The main reason ebook availability is so patchy at the moment is time. When Amazon (the biggest seller of ebooks in the world, and the first mainstream ebook retailer to enter the market in this country) first made the Kindle available to Australians in November 2009, they had not approached any Australian publishers to organise the distribution of ebook files and organise sales contracts. They did not, in fact, begin speaking to Australian publishers about terms until well into 2010. Concurrently, Amazon’s agreements with US publishers specified what copyright territories they were allowed to sell to – and most of these did not include Australia. Amazon decided not to mess with territorial copyright law (which, as I pointed out in the last post, are a legal grey area when it comes to ebooks) and honoured territorial copyright.

For the most part, that problem has now been fixed, but there was a massive delay in distribution that is still being felt by consumers looking to buy the newest releases for their Kindle or other ereaders even now. Given time, many ebooks that were not available at the launch of your favourite ebook reader or are not available straight after the print release date will eventually be sorted. The same goes for older backlist titles that have not yet had their rights cleared to be published in electronic form in Australia. This is a massive administrative and legal issue that most publishers around the world are slowly and surely dealing with, and it’s not something unique to Australia. Given time and resources, publishers the world over will sort it out and a greater range of titles will be available to everyone.

Having said that, this problem is representative of a larger issue. Why should Australian publishers be scrambling to get territory-specific rights to ebooks and inefficiently doubling (or tripling, or quadrupling) the workload when virtually identical ebook files are being created by their counterparts in the UK and US and they are all being sold from the same international retailer? You can kind of understand how it can be more efficient for publishers to print books in the country they sell them to, and you can understand why Australian publishers would look after the ebook files of Australian authors, but for identical electronic files to be produced and supplied separately to the exact same international retailers? It’s madness.

So why is it happening, and how can the industry as a whole move towards a more global system? And perhaps more importantly, should they? The answers to those questions essentially boil down to the same issue. Australia’s publishing industry is protected by the government with the enforcement of parallel importation restrictions; these restrictions enable Australian publishers to print more books locally, giving jobs to editors, printers, publicists, sales representatives, typesetters and, of course, authors. If we are moving towards a system in which a significant proportion of the books sold are electronic, and we give up on that protection of the industry, it will inevitably shrink. If Australian publishers make less money, they will likely publish fewer Australian authors, and fewer Australians will be employed in the publishing industry as a whole.

As a person employed by the publishing industry, my bias is for protection. Nonetheless, I do think consumers have a point when they complain that the US Kindle store has almost twice as much content as the Australian store – a restriction that is purely about protecting revenue streams rather than technical limitations. So if we assume that publishers are going to continue to protect these revenue streams, and that the current system will, for the most part, function as it is – what can be done to make it fairer for ebook readers?

Join me in the thrilling conclusion of this series of posts about ebooks and the fascinating world of territorial copyright, as I uncover some of the potential (and partial) solutions to this problem.

Where in the World is Lisbeth Salander? Pt 1

Those who have dipped their toes into the chilly waters of ebook purchasing have likely done so through an international portal like Amazon. But when you buy an ebook from Amazon, where is your money going? Are you buying that book from an Australian publisher? Or is it going to a big American or British company? And why is it that your mate in the States can buy a copy of Mockingjay from the Kindle store but you can’t? The answer is territorial copyright and parallel importation restrictions.

For those who have no idea what those two phrases mean, allow me to quickly explain. Territorial copyright is the legal licence sold by the owner of a copyrighted work (in this case, the author of a book) to a publisher so that they can reproduce that work for sale in a particular territory. Parallel importation restrictions are the laws that force Australian booksellers to sell the Australian version of a book where it is available (to stop them from importing cheaper versions of the same book from overseas and cutting out Australian publishers). However, this protection of Australian publishers is not absolute. The rule that governs parallel importation in Australia is known as the 30 day rule, which essentially means that so long as an Australian publisher gets a book printed and available for sale within 30 days of its publication overseas, Australian booksellers can only buy the Australian version.

There is another loophole in the parallel importation rules, and that is for single copies of books. Booksellers are allowed to import a single copy of a particular book for a customer, and individuals are allowed to import their own single copies of books from overseas (from stores like Amazon).

So what does this mean for ebooks? At the moment, every copy of an ebook sold is sold as a ‘single copy’. Nonetheless, every major ebook retailer respects parallel importation restrictions and does not allow the sale of ebooks to Australia unless the publisher who is providing the file to the retailer has explicit rights to sell that ebook in Australia. Is this a legal requirement of our parallel importation restrictions? Well, at the moment, nobody is sure. That’s why ebook retailers are playing it safe and keeping Australian publishers happy.

So we’ve ended up in a bizarre situation. I can buy a copy of any book I like from any publisher I like anywhere in the world and have it posted to me here in Australia. But ebooks? No. I can only get a copy of an ebook that has been explicitly produced and given to an ebook vendor by an Australian publisher (unless the overseas publisher owns worldwide digital rights – quite a rare situation). Is this crazy? Yes. Is it fair? Probably not. But the solution? Unsurprisingly, it is not going to be a cakewalk. Tune in to the next blog, folks, and I’ll see if I can make sense of why this is happening and what cleverer people than me think might be done to sort it out.

Who’s to Blame?

I was going to spend this post systematically going through all of Louise Adler’s terrible arguments against ebooks in this weekend’s National Times, or perhaps manufacture some kind of conspiracy theory because the comments on her post were closed after only three hours … but I’ve decided I’ve done enough immature ranting and name calling when it comes to the anachronistic dinosaurs of the publishing industry.

Instead I’d like to focus on a point that Ms Adler raised that I think is quite valid. That is: the range of books available to ebook buyers in Australia. Adler was specifically referring to the Kindle’s range, but it can be almost guaranteed that the same problems will plague Apple’s iPad when it launches in Australia later this month.

Snip:

The catalogue is insular and American. Its vast catalogue is composed of obscure backlists and out-of-copyright titles and a disturbingly comprehensive list of self-published authors. Despite the belated local release of the device, no Australian titles are available in the Kindle “store”.

Aside from the fact that Adler is technically incorrect here (there are plenty of Australian titles available in the Kindle store), her frustration is understandable when you compare the Australian offering (less than 300,000 titles, a big chunk of which are out of copyright) with the fully fledged US Kindle Store (of over 450,000 titles). So who’s to blame for this situation?

I’ve read a lot of Australian commentary on the topic, and people (especially anonymous blog commenters) really like to say ‘they’. You know what I mean. ‘They really need to sort this out before they lose customers’. The slightly more informed split their contempt between Amazon and Australian publishers. Says one commenter on the tech blog, Gizmodo, ‘Amazon wants everyone to buy ebooks from them, so it’s obviously the publishers that are causing the problem.’ And another, responding to the same article: ‘Amazon does need to drag its rear into being global if it wants happy customers.’

Jasper Jones, by the Australian author Craig Silvey, is not available from the Australian Kindle store, nor the UK or       US store. It is, for some reason though, available in France. And on Boomerang     in paper.

The truth is that the situation has more than one side. Amazon can be given a pretty healthy portion of the blame for launching an ‘international’ Kindle without planning their relationships with local publishers first. Most of the publishing people I know in Australia knew about the release of the Kindle in Australia at the same time as the average punter who wanted to buy one. Amazon rushed in with half a Kindle store, and then sat back as Kindle buyers blamed publishing companies for the lack of content.

Publishers, on the other hand, do not get off scot free. In Australia, the importation of books by bookstores is restricted by parallel importation laws. Your local bookshop cannot buy a hundred crate-loads of Wilbur Smith books from the UK and then sell them on to you. However, there’s nothing stopping you from buying Assegai yourself from the US or the UK when you want it and at the cheapest price you can get it. This arrangement protects Australian publishers’ profits (the bulk of which comes from bookshops), and to some extent gives them the money to invest in publishing local Australian authors. It is territorial copyright backed up with legal import restrictions. However, this does not apply to ebooks. At all. There is currently no law stopping you from buying ebooks from international ebookstores, including the Kindle store. Nonetheless, almost all of these stores restrict people from buying books outside the copyright territory of their home country anyway.

Why? I don’t know for sure. It’s likely a combination of pressure from big international publishing corporations, and self-regulation to avoid legal import restrictions on ebooks. To an ordinary book buyer, however, this situation must seem absolutely absurd. Why should the format of the book (electronic or paper) determine whether or not you can legally buy it from Australia over the internet? The answer is that it shouldn’t. But it does. Doesn’t this go against the very idea of ebooks (and as Louise Adler so deftly put it – the ‘democratisation of knowledge’)? Probably, yes.

What this issue comes down to is the same question that fuelled the parallel importation debate that was getting publishers and booksellers all riled up last year. Do Australian publishers need protection, and if so, should they be protected? What is more important – cheap, convenient access to books, or the future viability of unique Australian stories (not to mention the jobs of editors, printers, typesetters and authors in this country)? There are no clear cut answers to these questions, but thinking about them is a lot more interesting than just shaking your fist at ‘them’ and pointing the finger.