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.
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.”
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.]