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The New York Times has an excellent article about the legal battles going on over eBook rights of old books.

The article focuses on how ownership of the electronic rights to older books is in dispute. There are quite a few factors complicating the situation -

1. Big Publishers like Random House claim (obviously) that they have the ebook rights for old books they have print rights for. 
2. However, Author contracts have only included eBook rights for the last 15 years or so - which leaves an awful lot of books up for grabs.
3. Authors and Agents are concerned that the big publishers are not offering sufficient royalties for ebooks.  
4. Authors also like the idea of a company that actually makes a fair attempt at promoting eBooks.

If this seems to you like a situation ripe for a new publishing company to exploit – you’re right.

New Publishers like Open Road promise to do exactly that.

The Opportunity for Open Road and other Publishing upstarts

Here is a comment in the NY Times article that caught my eye -

Ms. Styron said her family was happy with the job Random House, and their father’s editor, Robert Loomis, had done for Mr. Styron’s work.

But with e-books, she said, “we didn’t feel that we were getting any similar kind of full-court press.”

A new publishing company can offer several things -

1. A focus on eBooks and domain expertise.
2. The efficiencies that come from that focus and from not having to support an old inefficient business model i.e. paper and print.
3. A full-court press on eBooks as opposed to the neglect and delays and high prices that traditional Publishers have delivered.
4. Better royalty rates for authors.

We’re seeing a new business model emerging and unless traditional publishers can throw a spanner in the works they’ll start losing eBook rights by the thousands.

The legal problem Big Publishers have

Big Publishers have a big problem if they try to sue Authors and new Publishing companies over eBook rights -

1. The precedent of a 2002 case where both a federal judge in Manhattan and an appellate court denied Random House’s case.
2. What happened (legal precedent wasn’t set as the case was settled out of court) is that the courts said publishing contracts’ language of ‘all rights to publish the works in book form’ did not automatically include eBooks.
3. Random House had to settle the case out of court.

Normally, with their big budgets and legal experience the big traditional publishers could just sue any new publishing companies and delay progress for 5 to 10 years.

However, in this case legal precedent was on the verge of being set. Any attempts to go down the same route might end up with a judgement that says old books’ eBook rights are not included in the old publishing contracts.

That would kill Publishers’ chances of scaring authors into granting them eBook rights and open the door for Open Road and other companies.

Who’s going to step in and the dilemma for Publishers

There are lots of potential competitors for Publishers here -

• It might be a new Publishing company like Open Road. They would go after the big authors and focus on marketing each.
• It might be huge companies like Amazon and Google. They would go for as many titles as they can convert and upload and just let readers pick and choose.
• It might even be individual authors investing a little money and getting eBook and iPhone App versions of their books.

Publishers face a unique dilemma

1. If they themselves are very proactive with eBooks they help accelerate the demise of their current business model.
2. If they are reticent then other companies fill the void and steal away eBook rights. From the NY Times article -
   

   “I think the potential danger that publishers run by not talking this through carefully,” said Andrew Wylie, a literary agent who represents the estates of Ralph Ellison and Vladimir Nabokov, “is that they will be excluded from e-book rights in a significant way.”

Will Publishers re-invent themselves and take over eBook rights or will they focus on physical books and leave eBooks alone?

Perhaps they will just continue to delay eBooks.

At some point Publishers have to stop fighting eBooks

Publishers have been doing all they can to slow down eBooks and eReaders.

Here’s a small list from my Are Publishers just trying to kill eReaders? post -

Not converting their books into ebooks.

Trying to sell ebooks for the same prices as hardcovers.

Trying to delay ebooks by 4 months.

Fighting the Kindle’s Text to Speech feature.

Limiting the Nook’s LendMe feature a lot – just one loan-out of an ebook.

Limiting the Nook’s In-Store browsing feature to 1 hr per 24 hr time period. 

With old book rights we see the same pattern – Publishers won’t convert them into ebooks and if they do they’ll only market them half-heartedly. At the same time they will fight anyone who tries to do a good job of it.

At some point Publishers have to embrace the changes happening around them.

1. Publishers have this idyllic vision – that we’ll settle into a balance where 15% to 25% of sales are eBooks and the rest are still print and paper. In that vision it’s OK to delay eBooks as much as possible.
2. What if the split is going to be the opposite i.e. 75% to 85% eBooks?
3. What if it’s going to happen in the next 5 to 10 years?

If that were to happen and if Publishers hadn’t embraced ebooks they would be wiped out.

Filed under: publishing Tagged: | ebook rights, future of publishing