From the issue dated March 30, 2001
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... But Make Sure You Read the Fine PrintBy MICHAEL J. BUGEJAIf you are the author of a scholarly work or textbook, or are planning to publish one soon, you might want to bone up on the pros and cons of the new bookmaking
In its purest form, print-on-demand technology operates much like a retail kiosk. Conceivably, in the near future, consumers in bookstores or shopping malls will be able to access an online directory like Books in Print, select a title, or several, and charge the amount on their credit cards at book-producing machines. Out will come their orders. At present, however, the more common form of print on demand exists in-plant -- that is, inside the printing division of a university or a publisher. Print-on-demand machines by Xerox and Kodak, which function much like high-speed laser printers, are sophisticated extensions of the printing press. The technology may prove to be a boon for authors of works with relatively long shelf lives -- including but not limited to theory, criticism, art history, biography, memoirs, creative writing, and anthologies and other compilations. But they may be a bane for authors of works requiring regular updates or editions, including textbooks in engineering, science, social science, and, ironically, new media and information technology. Generally speaking, scholarly works stand the test of time. A book on Milton's poetry, for example, has an exceptionally long shelf life. A collection of Milton's poetry with an astute foreword by a recognized scholar is virtually timeless. Such is not the case with many textbooks, which require regular updating, and popular trade books, which require vigorous marketing to meet sales potential. A company that orders a standard print run of 10,000 copies of a 150-page work can make a paperback book for about $1 and sell it for $15, to cover preproduction and marketing costs that include editing, proofreading, design, and advertising. By comparison, an order of 100 reprints of that same book would cost about $10 per copy, requiring a retail price of $50. That is why scholarly works that saturated their markets were allowed in the past to go out of print. Before the new technology, no publisher could afford press runs of fewer than 500 reprints. Even at that modest level, projected sales of the work would likely not cover printing and warehouse fees. Now, using print-on-demand machines, a publisher can reproduce an out-of-print book for about $10 and sell it for about $25 and still earn a modest profit. The title will never go out of print and costs little, if any, to warehouse. I learned about print on demand after receiving a form letter from my trade-book publisher notifying me that my text would go out of print and informing me how to purchase the remaining 850 copies at a 60-percent discount. That is a fairly normal occurrence in the book world, and trade authors usually welcome it. Standard contracts typically state under right-of-termination clauses that authors, upon written demand, may reclaim all rights to a work if it is not for sale in at least one edition. Authors, especially those in academe, have a chance then to revise a trade book or textbook, incorporating the latest research, and resell it to a competing house as a new work or an updated edition. Thus, professors can boast a significant new book-length publication, impressing the typical peer-review or promotion-and-tenure committee. In my case, however, reclaiming rights to my text was not an especially attractive option. I had four agate pages of permissions from dozens of authors and scholars. I would have had to resolicit those permissions for any updated edition. Renewing and paying again for those would be a tedious and expensive endeavor. Moreover, the book was selling well, almost 120 hardcover copies per month, with my royalties about to increase from 12 to 15 percent because of sales volume. Sales, though, had dropped by about 30 percent over two six-month reporting periods -- from 1,034 books to 736, and then to 716 books, between June 1999 and June 2000. The marketing team felt the drop in sales indicated that the title was saturating its market. I contended that the publisher had cannibalized its own list with four more recent titles in the narrow literary discipline of poetry writing. In any case, no matter what the motive, the marketing team decided to let my title lapse. I understood and was prepared to accept the economics of the book business. What baffled me, however, was that I had just created a distance-learning course for the publishing company based on the text. Obviously, one department was not communicating with the other, because if I got back rights to the work, theoretically I could resell an updated edition of the text to a competitor. In such a case, my publisher's distance-learning course would end up selling books for a rival company -- surely not what the publisher intended. I notified the company about the oversight, with the goal of negotiating another hardor softcover press run. Instead, the publisher decided it was interested in going with a print-on-demand version, ostensibly to ensure that the distance-learning division would get its fair share of books for enrollees. So instead of retaining rights to a lucrative work and selling an updated version to another house, I would have no control over the book's future. The publisher seemed merely to be responding to an in-house oversight and, in the process, ignoring my interests. I reviewed the book's 1991 contract, noting that it lacked a future-technology clause. Generally, such a clause is so comprehensive that it comes off as overkill, trying to anticipate all existing and future technologies, most of which a publisher will never employ. Authors who sign agreements with such provisions may end up in a curious situation because of the way the stipulations mesh with standard competing-work clauses. Those usually bar authors from doing a new book on the same subject for another publishing house during the term of the agreement. Some contracts state that the author shall not publish a competing work until the title in question goes out of print. A colleague of mine signed, with a major textbook company, a contract with a competing-work clause. The future-technology provision of her contract allows the publisher to utilize print on demand; the competing-work provision forbids her to write another textbook in her discipline until her existing work goes out of print. Because of print on demand, her book will never go out of print. So she is forbidden, in theory at least, to write another book-length work in her writing-genre specialty. Essentially, the competing-work clause limits the scope of my colleague's productivity. She signed her contract in the early 1990's before print-on-demand technology was in vogue, and, like most textbook authors, she probably assumed that she would update her book during the rest of her academic career or write a new work in her specialty once the old work went out of print. Luckily, my colleague is a full professor and an accomplished writer and, like me, is able to publish in a variety of journalistic and literary forums. But if she were still untenured or not yet promoted, the combination of future-technology and competing-work clauses could have put her in an untenable position, particularly if her specialty were in a narrower scholarly discipline. Thomas Hodson, an attorney and former Ohio state trial judge, has represented an Ohio University professor in the same situation as my colleague. "We were able to negotiate an agreement with his publisher because of his status as a writer," Hodson told me. "That might not have been the case if he was a lesser-known, untenured assistant professor." Perhaps those cases and mine, along with potentially hundreds of others like them, only prove that professors should consult with experienced contract attorneys before signing agreements in the current high-tech-media age. The risks to one's career are simply too great in today's changing electronic environment. Constance Davis, a journalism-school colleague who teaches media law at Ohio University, explains to book authors that the courts are now interpreting new technology's impact on the Copyright Act of 1976. Lower courts have held that Congress, formulating copyright provisions, could not have anticipated the impact of new technologies on copyright. In Tasini v. New York Times, for instance, the U.S. district-court judge dismissed claims by six freelance writers against several publishers, including the Times, for placing contents of works in electronic databases and CD-ROM's. The court held that the "plaintiffs' real complaint lies in the fact that modern technology has created a situation in which revision rights are much more valuable" than when specific terms of the Copyright Act were being negotiated. Nonetheless, the court stated, "if Congress agrees with plaintiffs that, in today's world of pricey electronic information systems" copyright provisions no longer serve their intended purposes, then Congress is free to change those provisions "to achieve a more equitable result." That ruling was overturned last year in the Second Circuit Court of Appeals, giving writers a major victory. Perhaps more important, says Davis, Tasini was the first case where the courts extensively analyzed the revisions section of the Copyright Act in terms of new technologies. The Second Circuit considered both the language and the legislative intent of the Copyright Act, finding that an electronic version of a freelancer's article was a new publication, rather than a revision. Tasini may have concerned freelance writers rather than book authors, Davis says, and dealt with compilations in CD-ROM's and electronic databases rather than printing processes associated with new technologies, but the Second Circuit is quite specific in its discussion of what it considers a new publication. The Second Circuit's ruling has since been appealed and accepted for review by the U.S. Supreme Court, which is scheduled to hear arguments on it this week. While the courts debate the impact of new technology on copyright law, little is certain, except what all parties agree to in a new contract or an amendment to an existing one. Thus, getting expert legal advice is more important than ever when a book is accepted for publication, allowed to go out of print, or published via print on demand. What is needed is a new, clear definition of "out of print" and how that definition relates to competing works. If a book has saturated its market -- the reason publishers opt for print on demand in the first place -- I believe that situation alone should effectively terminate the competing-works clause. If you have an existing contract, review it for a future-technology clause. If your contract lacks such a clause, and your publisher wants to use print-on-demand technology, consider your best interests. You can do nothing, and let the technology ensure that your book will be available for generations to come, an enticing prospect if your work has a long shelf life. Conversely, you may want to renegotiate some provisions. Generally, publishers prefer to amend contracts rather than go to court over copyright issues or participate in arbitration. If your publisher agrees to changes, as mine did, your attorney can suggest appropriate definitions for out-of-print and competing works. If you have a contract with future-technology and competing-work clauses, and your textbook is being kept on literary life support via print on demand, you or your attorney may want to contact your publisher to release you from the competing-work provision. After all, once the house employs print on demand, there is no basis to argue against competing works anyway. Even if you can't persuade your publisher to acknowledge your viewpoint, you will raise important copyright questions and, depending on how far you are willing to take your case, challenge the status quo. The stakes are high, for in the end, your book contract may influence your job contract. Michael J. Bugeja is a journalism professor at Ohio University at Athens and special assistant to the university's president. http://chronicle.com Section: The Chronicle Review Page: B9
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Copyright © 2001 by The Chronicle of Higher Education