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NEW: Technology’s Impact on Book Contract

DILEMMA

I signed a contract with Oxford Press for my book in 2004. Its termination clause reads, “In the event that the Work shall at any time be out of print, the Author may give notice thereof to the Publisher, and in such event the Publisher shall declare within thirty days … and then this Agreement shall terminate and all rights granted hereunder shall revert to the Author …”There is a moral underpinning in any contract, namely, the two parties enter into an agreement with a common understanding of the language used in defining the various clauses in the contract.

In 2004, the acquisition editor and I understood the words “in print” (and hence “out of print”) to mean a batch of books printed using traditional technology, which in my case was 2,000 copies. A new print implied another batch of similar number, a fact emphasized by the printing number described on the copyright page of each book.

In January 2013, I contacted the publisher regarding the status of my book after finding from my royalty statement that 35 copies of my book were returned with no new sales. I was informed “your book remains in print via our auto-replenishment program.” Auto-replenishment is the process by which a batch of 50 copies is printed using print on demand (POD) technology.

The POD technology was not discussed or mentioned in any part of my contract. It is a unilateral redefinition of the terms of my contract that renders the entire termination clause meaningless, as no book will ever be out of print because of POD technology. No author would sign a contract that says the author gives up his/her right in perpetuity to a publisher. This is an unethical practice. What do you recommend?

Disgruntled Academic Author

RESPONSE

Dear Disgruntled,

As an author, I am, of course, very sympathetic to the author of this case. My seventh book had a somewhat similar fate: A publisher who controlled it, but sat on it without promoting it. In the end, I agreed to pay $1,000 to buy back my rights and republish with another press. The original publisher did invest some labor in designing my text, putting in charts and diagrams, etc., though maybe not $1,000 worth. Regaining freedom and control were worth my ransom payment in the end.

I agree that the common assumption of the meaning of “in print” when you entered into the contract should decide this case, but you may need to threaten or carry out a lawsuit to get that established. And that might cost more than just buying them out. You could consider contacting other authors published by this house and see if collectively you could bring private and public pressure on them for some justice. If it happened to you there are probably other victims. Complain to industry organizations and publications.

Going forward: Pick your publishers carefully! Be very careful about the fine print and about anticipating future industry developments.
David W. Gill

David W. Gill was co-founder of IBTE and author of Benchmark Ethics, a regular article in the first 32 issues of Ethix. After eight years of writing, speaking, teaching, and consulting in the Bay Area of California, he joined the faculty of Gordon-Conwell Theological Center (South Hampton, Mass.) in 2010, where he is also director of the Mockler Center for Faith and Ethics in the Workplace.

SECOND RESPONSE

Dear Disgruntled,

I had explored the issues of books in the 21st century with Tami Heim, former president of Borders books (now out of business) and former chief publishing executive for Thomas Nelson Publishers. She outlines some of the challenges in our discussion.

The issues are tough on all sides, not just for authors. I have not seen anyone who can determine what this world will look like in 10 years. The music industry has found a potential solution to their similar dilemma. Single songs are offered through iTunes for $.99, and this has slowed down music piracy, but has significantly decreased artist revenue at the same time. In books, the role of the author, publisher, printer, seller are all undergoing change.

You say you would not sign a contract with a publisher in perpetuity. What is the alternative? Self-publishing works for some (see the review of APE: How to Publish a Book by Guy Kawasaki and Steve Welch) but would that work for you in an academic setting? Today, academic institutions place a much lower value (or no value) on a self-published book than on one done through a prestigious publisher like Oxford University Press.
Albert M. Erisman

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Al Erisman
Executive Editor

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