Australian bookselling icon Dymocks last week launched a self-publishing service called D Publishing. While the service looks fine, its publishing contract is dreadful. Even if you’re not in Australia, you should look at it to see just how bad a publishing contract can be in the wrong hands.

The issue was exposed by The Australian Literature Review (AusLit) in a blog post headed, D Publishing by Dymocks Books – AUTHORS BEWARE. AusLit was concerned that, under the contract:

Authors grant an exclusive license to Dymocks for commercial rights worldwide for the duration of the copyright, including all subsidiary rights to the work.

While an author would have the right for their name to be attached to the work, they are essentially HANDING OVER CONTROL OF THE COMMERCIAL ASPECTS OF COPYRIGHT WORLDWIDE, INCLUDING ALL SUBSIDIARY RIGHTS, FOR THE DURATION OF THE COPYRIGHT.

Authors inexperienced in the business of publishing and in dealing with publishing contracts may not realise the implications of what they  are agreeing to.

What makes this grab for authors’ rights especially cynical is that the Dymocks service gets these rights for doing almost nothing. If Dymocks posts an ebook for sale on its website, it will have done enough under the contract to earn its exclusive right to the work worldwide for the author’s lifetime plus 70 years — and not just in book form: all subsidiary rights such as film, and other electronic forms are included.

AusLit’s criticism led to some minor changes to the contract. But Australian publishing contract expert Alex Adsett, who assessed the D Publishing contract after changes were made, told the Weekly Book Newsletter she thought it was ‘as terrible as some of the online commentary suggests’.

Other problems cited by AusLit and Adsett include:

  • D Publishing has the right to amend the terms and conditions, including the royalties, at any time.
  • Under the contract, this could entitle D Publishing to pay zero royalties for some rights.
  • Signing up to it is as simple as clicking an online ‘accept’ button.
  • There is no way for the author to terminate the contract, other than through a breach of contract by D Publishing — unlikely since the contract places almost no obligations on D Publishing. A copyright in Australia lasts for the author’s lifetime plus 70 years.

Adsett told Weekly Book Newsletter (WBN) that the aspects of the contract she was most concerned about were not replicated in commercial publishing contracts or in ‘common vanity press contracts’.

I’ve reviewed the Dymocks contract as it stands. It really is as bad as its critics allege and is not typical of publishing agreements.

The damage it could do is made worse by the use of Dymocks’ good name and the targeting of authors who are  inexperienced in the business of publishing.

Dymocks’ initial attempt to address the issues raised by AusLit failed badly. This is not surprising when Dymocks general manger of ecommerce Michael Allara, speaking to WBN, put the problems down to “how technical legal contracts can be interpreted out of context.”

Says AusLit:

The major change has been to bury key details in less direct language and disperse that key information piecemeal across more clauses. This may make key details less obvious to inexperienced authors until they have accepted the agreement but doesn’t address the problems.

I think it’s time for the Australian Society of Authors and the Australian Publishers Association to step in to clean this up. The Publishers Association especially should be concerned that the industry is not tainted by such a high profile abuse. This is not a typical publishing contract.

Dymocks also has a strong presence in New Zealand so it would be disappointing to see this contract pop up in other markets. It seems to be planning to expand the geographical reach of its digital publishing initiative.

The publishing contract is posted here. Hopefully it will be updated and quickly brought into line with reasonable industry practice. Given the inexperience of its target market, and the online self-service environment, this should include  a clear and prominent summary of the key terms, not just nine pages of legalise.

[Update: 12 January 2012. Dymocks revised its contract again, partially addressing some of the concerns raised and doing a slightly better job of explaining the contract terms. AusLit has produced a detailed account of these changes. Says AusLit:

I think this is a big opportunity being wasted by Dymocks. I also think most authors are not going to be prepared to license their rights to a publishing service which takes the rewards of an upper-end traditional publisher while taking on obligations similar to a hands-off self-publishing service or vanity press in return.

I agree with this conclusion. This remains a terrible contract which authors should avoid.] [UPDATE: 6 March 2013. Dymocks exited its ebook publishing business.]

 

11 Responses to Could this be Australia’s worst publishing contract? And bookselling icon Dymocks is behind it.

  1. AusLit says:

    I spoke with Michael Allara at the Dymocks Head Office on Wednesday afternoon for about 4 hours.
    I discussed major concerns with him in detail and suggested solutions.
    He told me that some things would be fixed and that he would reword crucial clauses 3.1 and 3.3 with their legal counsel and should have an amended Publishing Agreement released in coming days.
    I hope the new version to come will adequately address the problems and make a good offering for authors – or at least clear up the major concerns posed by the current wording.
    Michael described intentions to me which could make for a good offering but currently, without that being reflected in the Publishing Agreement and without major inconsistencies between the agreement and the intentions discussed with me, the problems for authors remain.

  2. @AusLit, you’ve done a great job exposing this problem and I certainly hope it’s addressed. The earlier comments by Michael Allara to yourself and Weekly Book News didn’t seem to acknowledge the problems. In the meantime, it highlights some of the issues authors should be aware of.

    I think it’s also important in a situation like this that the main terms are highlighted, not just buried in a contract. Many people entering these self-publishing agreements don’t have the benefit of professional advice and could rightly believe that they are hiring a contractor, not giving away substantial rights to their work. This approach would be analogous to the the trend for more open disclosure of financial products which are aimed at consumers rather than habitual investors.

  3. AusLit says:

    Thanks Martin.

    One thing that came up in discussion with Michael Allara is that he objects to people using the term self-publishing for what they offer.

    He distinguished what they do as author-driven traditional publishing. I am personally not going to get into a debate about semantics, because people can see what’s on offer, what’s not and call it whatever they want.

    People should however be fully aware of the nature and extent of a license to a publisher/distributor/agent/retailer – or whatever you care to call that cluster of roles – before granting such a license.

    If someone fully understands what they are getting into and is happy to do it, then great.

    People definitely should not just skim over the agreement thinking they are signing up for something like CreateSpace – which is very flexible, can be terminated by the author at any time for any reason, is a non-exclusive arrangement, and authors retain their rights.

    I hope the revised version which apparently should be available soon will clear up the problems. :)

  4. Jaqhama says:

    I’m guessing that a lot of authors are not aware that even if they do not have an agent to represent them when dealing with a publishing contract they can always hire the services of an Intellectual Properties lawyer.
    IP lawyers are now being utilised by many authors. And the IP lawyer works for you. He or she has no affiliation with either the publisher you’re considering signing with or an agent that you might have submitted a manuscript to.
    I understand that a lot of new authors might think that an IP lawyer is an added expense in their goal of being published, but it’s quite possible that in the long run it might be a wise investment.
    An IP lawyer will be able to advise you of what you should, and should not, be signing away in a publishing contract.

  5. Jaqhama says:

    From Wikipedia self-publishing page:

    http://en.wikipedia.org/wiki/Self-publishing

    2.1: Vanity publishing
    Main article: Vanity press

    “The term ‘vanity publishing’ is mostly obsolete today as a company contracting with an author to assist with the production of a book is considered ‘self-publishing’, not vanity publishing.
    [2] The author may engage a company that offers services—usually designed as publishing packages including editing, marketing, design, etc.—and outsource all or part of the process to these companies.

    There remains, however, a small number of companies that refer to themselves as a ‘publisher’ but only offer to publish an author for a fee. These are ‘vanity publishers’ and should be distinguished from the above companies that offer services to the independent author and do not pretend to be a publisher. These companies make the majority of their income from the fees paid by the author and not from sales as would be the case with traditional publishers. These companies are also known as joint venture or subsidy presses.”

  6. @Jaqhama. I’d personally like to see the term ‘vanity publishing’ consigned to history but there’s a worthwhile distinction to make, as you’ve pointed out, when someone other than the author is prepared to back a book with cash and resources.

    The problem with ‘vanity press’ is that, even when it is meant to describe the publisher, it inevitably taints the author. It ascribes something to the author that is seldom the reason that they write, or want their writing to see the light of day.

    Most authors are doing it for conviction, drive, money, a desire to change something in the world, a host of reasons. But it’s seldom vanity. I suspect vanity might have been more of an attribute of the publishing establishment that coined the term.

    Given that the word ‘publisher’ describes a range of things that have to be done to get a book successfully to the market, I’d favour keeping it as the generic term for a service provider to authors. And I think, in the brave new digital world, an author — great or small — should be able to make a return-on-investment calculation and decide whether they manage the publishing process or assign it to someone else.

    Let’s think of another way to describe whose money is on the line. A good start would be individual publishers spending real money of their own building a trusted brand that denotes quality to the *reader*. Few readers are awaare of publisher brands so have no reason to favour them.

    Publishers who invest in building a trusted consumer brand will have something to sell to authors and a legitimate argument that they’re helping consumers. But notice that online booksellers are doing little or nothing to promote publisher brands. They’re buried or completely absent from many online bookstores. I hope publishers understand what’s happening here.

  7. jules older says:

    The contract is disgraceful.

    The publisher is disgraceful.

    But even more disgraceful is that writers sign such contracts without being waterboarded, their feet being held to the fire, threats to their children.

    The way to end such contracts? Don’t sign.

    — jules

  8. Jaqhama says:

    I’m a great fan of the thoughts on publishing as posted by Dean Wesley Smith and his wife Kristine, and also Joe Konrath.

    http://www.deanwesleysmith.com/

    Dean’s Killing the Sacred Cows of Publishing is worth a read in its entirety:

    http://www.deanwesleysmith.com/?page_id=860

    Kristine:
    http://kriswrites.com/

    Joe speaks boldly about his dislike of the trad pub scene and why the ball is no longer all in the publisher’s court.

    http://jakonrath.blogspot.com/

    It’s a whole new game out there in the writing and publishing world.

    A lot of publishers are going to get left behind.

  9. [...] their Board, etc, could get their Publishing Agreement so wrong. The question has even been asked: Could this be Australia’s worst publishing contract? I am not concerned with what went wrong or who is to blame. I just hope the new Publishing [...]

  10. AusLit says:

    The following article, featuring an interview with me, went up on the book blog of Australian news outlet Crikey today:

    http://blogs.crikey.com.au/liticism/2011/12/21/authors-beware-interview-with-steve-rossiter/

  11. [...] Could this be Australia’s worst publishing contract? And bookselling icon Dymocks is behind it. [...]

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