Thursday, May 24, 2007

A Stealth Attack On Author's Rights

If Mark Helprin is really concerned about the rights and incomes of writers, here is a much more serious issue for him to grapple with than his goofy proposal for perpetual copyright (see below). As the Author's Guild has been reporting to its members, Simon & Schuster--one of the world's biggest and most powerful book publishers--has quietly made a unilateral change in its standard author contracts which would dramatically extend the company's control over the literary works it publishes.

The details are slightly arcane, but here is the gist: Traditionally, when printed copies of a book are no longer available in a publisher's warehouse, the book is considered "out of print." This means the author can request "reversion of rights" to the book. That request forces the publisher to decide whether to print more copies of the book (thereby returning to "in print" status) or to formally cede control of copyright back to the author.

In the latter case, when rights do revert, the author has the opportunity to sell the book again, either by reprinting it himself or by making a fresh deal with a different publisher. It's not uncommon for a book deemed a lost cause by its original publisher to find a new life and a bigger audience when reborn in this fashion.

Now Simon & Schuster, with no fanfare, is trying to change this traditional system. Their new contract specifies that S&S will retain the rights to books that are not "in print" in the traditional sense but that are available via the new "print on demand" technology. Theoretically, any book, no matter how moribund, could be considered "available" in this sense, so long as the publisher has the text files in its database. The book might be in no stores or warehouses, listed in no catalogs, never mentioned by the publishers' salespeople, never marketed, advertised, or promoted in any way--yet S&S would still claim exclusive control over the book and thereby prevent the author from making any money from its sale elsewhere.

Embarrassed by the bad publicity it is receiving over this backhanded ploy (thanks, again, to the Author's Guild), S&S is now backing down a bit. Whereas it had reportedly told some agents that the new clause was non-negotiable, it now says it will discuss the issue on a case-by-case basis. Which of course discriminates against authors with less-aggressive or less-attentive agents as well as those (relatively few) authors who aren't represented by agents at all.

There's a widespread assumption that the digital revolution is shifting the power of the media from the hands of large corporations into those of individuals and small groups. There's some truth to this--as exemplified, of course, by the blogging movement. But it would be foolish to assume that Big Media is going to accept such a devolution without a fight. This story is an example of the many little-recognized battlegrounds where the war for future control of intellectual property is being waged.

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