In the fourth installment of its Fair Contract Initiative, first introduced at BookExpo America, the Authors Guild took a deep dive into contract time limits, subrights, and out of print clauses. The latest entry, called "A Publishing Contract Should Not Be Forever," was posted on Guild's website Tuesday morning. It expands on the Guild's previous post, revealed in June, which called for an overhaul of royalty rates and a general re-examination of an author's right to his or her work, suggesting specific changes to contract boilerplates.
"There’s no good reason why a book should be held hostage by a publisher for the lifetime of the copyright, the life of the author plus seventy years—essentially forever," the Guild wrote. "Yet that’s precisely what happens today. A publisher may go bankrupt or be bought by a conglomerate, the editors who championed the author may go on to other companies, the sales force may fail to establish the title in the marketplace and ignore it thereafter, but no matter how badly the publisher mishandles the book, the author’s agreement with the original publisher is likely to remain in effect for many decades."
In order to remedy the issue of lifetime contracts, the Guild has proposed a three part change, introducing time-limited contracts, a clause that provides for reversion of unexploited rights, and a specific new unchallengeable definition to replace historic 'out of print' clauses that are not remotely relevant in the electronic age."
The Guild put forth that a contract should last for a "limited" period of time, and upon expiration, the author and publisher have the option to re-negotiate another time-limited deal. Too, the Guild argues that subsidiary rights an author grants to a publisher should be "subject to reversion after the author’s demand" if they are not exploited within 18 to 24 months of publication. "There’s no reason why a publisher’s ineffectiveness at selling subsidiary rights should reduce the author’s income forever," said the Guild.
Lastly, the organization believes that the out-of-print clause, which, said the Guild, traditionally describes a book as in print so long as it is “available for sale in any edition" has "failed woefully to keep up with modern publishing practices" in an e-book and POD era. Its suggestion is to kill it altogether.
"Instead, the contract should define when book rights are being 'inadequately exploited' and therefore available for reversion to the author when the book fails to generate a certain amount of income—say, $250–$500—in a one-year period," wrote the Guild. "Using income as the yardstick, not a specific number of sales, is essential: Publishers might otherwise be able to game the clause by offering one-cent e-books the way they’ve gamed existing clauses by using e-books and print-on-demand."
