My Own Personal Grey

More on the e-Pubbery question

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Recently I received a note from a fan (whose name I’ve withheld to protect their privacy) commenting on my post “Not the Whole Enchilada” about why I have chosen to remain in the traditional publishing model with Penguin/Roc rather than go “indie” and self-pub on Kindle or other e-book platforms. The writer brings up an interesting issue and admits to some confusion:

… My confusion is about making your books available on kindle or any e format. It seems to me that publishers should make the effort to make their clients books available in every venue possible to further the career and success of the author. While you and the commenters on your blog covered personal preference at great length, none of you covered why your publisher does not automatically do so for all their clients. …

Additional data point: Jim C. Hines–whom I like and respect enormously–made the point in a very clever cartoon that, while the e-book issues are massively interesting and important to writers, they are mostly invisible to the average reader.

Although I’ve already replied directly to the fan who sent the note, I wanted to open this up a bit.

My correspondent seems to be wondering why publishers aren’t making e-books widely available, which sounds like a very simple query, but in its simplicity, it’s also overly simplified and this is part of the confusion. At this time* the “Big Six” publishers do make all their new publications available for all the major e-book formats as quickly as possible–usually simultaneously with the release of the ink-and-pulp edition. (Of course there are exceptions, but we’ll have to accept that there are some and go on or we’ll be here all day.)

Electronic rights clauses are currently the hottest topic in publishing contracts. Right now, refusing to grant one of the Big Six publishers the right to create and distribute e-book editions of your book in a new contract is a literal deal-breaker. If you’re very powerful and/or you’ve held onto control of your e-book rights in the past, like, for instance Cory Doctorow, you may be able to retain some control of the e-book clause, but for most of us in this situation, that is not an option. Refuse to include the clause (with the standard “Agency model”**) in your new contract or ask for a different percentage and the publisher will refuse the contract. The same holds true for most of the smaller corporate publishers and even some of the boutique and small independent presses (not to be confused with “indie” writers who are not publishers, but rather writers who choose to self-publish–usually via electronic channels such as Kindle, Smashwords, Lulu.com and similar platforms and websites.) Some small publishers are not even guaranteeing print formats at all in new contracts. E-rights are the Holy Grail.

With me still? I hope so.

So, what this essentially boils down to is that writers with recent or new contracts with a corporate publisher of any size or with many smaller presses are being electronically published in all e-book formats at the same time (or as soon afterward as can be accomplished). Most of these authors don’t actually have any choice or say about it (though I’m not seeing many complaining.) If their book is not available right away, the reason is not that the author chooses not to e-publish or is “holding out”, but that there is some contractual or technical issue stopping the e-book from being available. For instance: my previous book, Labyrinth–released the first week of August 2010–was eight weeks late to the electronic market due to technical problems. It was under contract with Penguin (the publisher parent of my imprint, Roc) and the previous book had come out in electronic format at the same time as the pulp-and-ink version in 2009 with no hitches or delay. No one had expected any problems this time, but… they happened. C’est la vie. The publisher fixed the problem as quickly as they could and had put Labyrinth up for sale on all the major platforms by the first of October 2010. This sort of delay is atypical, since the publishers want to embrace e-books, in spite of some trepidation about ease of piracy, price points, security, and related issues. Publishers love e-books and don’t you believe anyone who says they don’t.

Simultaneous release of print and e-book editions are the norm for all major US publishers right now and for smaller pulp-and-ink publishers. But, some of the smaller presses, specialized presses, and independent presses do not–or cannot–do this.

This is where the confusion comes in. Some small corporate and independent presses do not offer e-books at all (while others offer e-books only, but that’s another story) and leave those rights to the writer to manage. If the writer choses not to do so, no e-book will be forthcoming.

But here’s the thing: the writer owns the rights. Not the publisher. Publishing contracts of this type are not outright purchases of the story. They are a contract of license to exercise the author’s copyright on their behalf and benefit financially from that. But it’s still up to the author to manage those rights in whatever way they deem fit (including not to exercise them at all.)

So why wouldn’t they put out their own e-books or urge their publisher to do so right away? There are a lot of reasons: the author may not feel comfortable with the current legal and technical issues with e-books; the author may have already sold the license to someone one else; there may be a contractual clause from a previous or current contract which restrains the author or publisher; or any of several other similar reasons including “I don’t want to.” (And as the writer you have the right to say “I just don’t want to” for any reason, even if it seems foolhardy or silly to others–it’s your story. You’re also allowed to change your mind.)

OK but what about a book that’s not brand new? Ah. Here is where things get really bizarre and complicated. Until the late 90s, most publishers didn’t even consider the issue of electronic rights. They liked the idea of e-books (which had been floating around since Project Gutenberg launched in 1971***) but the reality wasn’t financially worthwhile for them yet. The format was text-only, kind of ugly, not very portable, and very easy to copy–which in a publisher’s mind means it’s easy to pirate. Also, you had to have a computer and access to the Internet, which in the 70s was the sole province of governments, scientists, and geeks. There also wasn’t any sure-fire way to get paid for the book. So, they let the technology cook a bit longer on the back burner and didn’t worry too much about securing electronic rights in any meaningful way immediately.

Eventually publishers started adding electronic book clauses to their contracts as the technology advanced, but in a lot of cases, the contract ended when the pulp-and-ink version went out of print or a certain amount of time elapsed, so they no longer had the e-book rights afterward and everything reverted to the author. And they often didn’t secure e-book rights with newer contracts, or made them very loose. They certainly didn’t start archiving electronic versions for later conversion if and when the technology became worthwhile. So when the technology became viable and the publishing industry got really hot to start making e-books available and selling them online, they only had the rights to the books that were under current contract with them. And if they didn’t make an electronic version at the same time they were processing the print version, they’d have to go back later and create one from scratch.

Which is what is still happening with books published before 2009. The industry and authors are still trying to catch up and get as many books out in electronic format as possible. But this is often complicated by legal and contractual problems and many aren’t simple or easy to solve. Authors who are in contracts that included electronic rights but haven’t exercised them yet can’t do anything but wait or pester their publisher to get a move on. They could ask for the rights back, but chances are good the publisher will hold on with a grip of steel and say “NO!” very loudly and possibly with lawyers.

Publishers who have un-used electronic rights are in a lather to get the books out before the contract lapses and they have to revert the right to the author. They are also trying to find ways to bring books that are out of print completely back into print as e-books, but there are a lot of complicated factors there too. Not the least of these is that in the current economic climate, publishers of all sizes have cut staff to the bone. The electronic book formatting staff is usually tiny**** and they can only process files so fast. If we’re to judge by my own experience with Labyrinth, it takes six to eight weeks beyond the time the print edition is ready to go to get electronic editions cleaned up, set-up, and ready to be formatted for each of the major e-book systems.

So this is why publishers don’t always have every title available in e-book form that is available in print form. It’s also part of the reason a lot of independent writers are making their books available on only one or a small number of e-book platforms–it takes time and effort to prepare the files for e-publication.

On the subject of indie authors, there’s the flip side to the e-book issue which is, no print edition available. The same problems that slow the production of print books into e-book work in reverse for e-books into print and then there are production, distribution, and sales issues to be addressed. But this is a discussion for another day.

So, that’s the bones of why books aren’t always available in the format you prefer. Most major publishers are putting books out in both print and electronic formats simultaneously. Smaller publishers are catching up to that as fast as they can. Older books may simply not be available as e-books yet (or ever, in some cases) because of staffing, technical, or legal complications. It’s not (usually) that authors or publishers are holding out. It’s just a situation that is new, complex, and complicated by economics as well as massive upheavals in technology, the publishing industry, and copyright law.

This won’t last forever. It won’t even last very long, but it is going to be a bit of chaos and disorganized mess for a while. Eventually I think all books that can be copyright cleared will make their way into electronic form and be available to anyone who wants to buy them. I think the prices will stabilize and that more authors will start to do self-publishing or a hybrid form of publishing where they cooperate with editorial and production teams on a different basis than they do now, contract with publicists, marketers and distributors more directly, and control their print and electronic rights separately.

The book world is changing for authors and readers as well as the publishers. The best I can say to my correspondent is “My books are out there. But for the rest, bear with us; it’ll work out soon.”

*I know I keep on making this qualification, but since the industry is currently in a state of wild and unpredictable change, I can’t make any sweeping statements about how things are going to be in a month or a year or five years or a decade from now. It would be foolhardy and probably wrong.

**The publisher sets the price for the e-book, takes 70% of the sale, and leaves 30% to the retailer. The Author receives 25% of the publisher’s “net” (at the moment undefined, but assumed to be the whole 70% they got from the retailer.) There’s an interesting article at Diesel from November 2010 about some of the complications of the Agency Model after the first six months. And an older article from eBook Readers Resource that boils down the model and the initial issue that brought it to the fore in a nice clear, short article.

***If you want to know more about the rise of e-books there’s a nice timeline article at the Guardian UK site from January 2002. It is a little dated, but it’ll get you up to speed on how this all started.

****Contrary to the opinion frequently aired online, e-books don’t cost nothing to produce. According to my editor back in 2009, in terms of fixed costs, overhead, and employee time, they cost a publisher between $2,000 and $10,000 per title to prepare and format for all the major e-book platforms. That’s cost above and beyond the cost of making the print edition. That cost has come down some in the past 2 years, but an e-book is not just the same electronic file that is used to create the print edition. It’s different monkey.

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