A Guest Blog Post

By Toni Williams, author of “Between Two Fires”

Back in 2009, Jeremy Poynting, the publisher of Peepal Tree Press based in Leeds, England launched a ‘New Caribbean Writers’ Series aimed at returning to print “at least sixty” significant Caribbean titles from the 1950s to the 1980s.

_jeremy-poynting-In explaining his rationale for resurrecting the out-of-print titles, several of them by writers who had long passed away, he said: “I’d become increasingly conscious that many of the books I’d admired when I’d read them, sometimes over forty years ago, and the books that revealed what a hugely creative place the Caribbean psyche was, were out of print and destined to stay that way, and that more would follow.”

Back then Poynting was articulating a problem facing not just writers from the Caribbean but throughout the world – the unavailability of backlists from publishers who are no longer interested in exploiting their potential and simply allow them to go out of print and sink into oblivion.

With the increasing consolidation of the global publishing industry through mergers and acquisitions, particularly in America, and the big publishing houses’ manic obsession with ‘bestsellers’ and maximizing profits, the problem of backlists being allowed to languish in limbo or virtually vanish into thin air, doesn’t look like it’s going away anytime soon.

Considering how modern digital technologies, such as e-books and e-reading devices, and Print-on-Demand (POD) have transformed production processes, distribution channels and consumption patterns, one would have thought that by now the notion of books going ‘out of print’ would have been a thing of the past.

Think again.

BookstoreIronically, the advent of e-books and POD enables publishers not just to keep books “in print” but to keep them in print perpetually,  even when the books are not selling. At the same time it prevents the rights from reverting to the author, even though she may be seeing very little or no sales.

Increasingly writers are being compelled to face up to the reality that while getting published is great, ultimately it makes no sense, nor is it in their best interest to passively allow their rights to be tied up by a publisher who just sits on their books and makes no discernible effort to get them into the hands of readers – whether by exercising the primary rights they acquired or by licensing subsidiary rights to third parties.

Here’s an example of an out-of-print clause from Keepyourcopyrights.org that’s not untypical of publishing contracts.

16(a) In the event that the Work shall at any time be out of print, the Author may give notice thereof to the Publisher and in such event the Publisher shall declare within 60 days, in writing, whether it intends to keep the Work available for sale. The term “out of print” is defined as being unavailable in any of the formats specified [previously] in this Agreement.[These include, but are not limited to, hardcover, anthologies, book club editions, translations and motion picture rights.] If the Publisher declares its intention to return the book to print, it shall act not later than six (6) months from the date of such notice. If within 60 days the Publisher does not declare in writing that it intends to keep the Work available for sale, then this Agreement shall terminate and all rights granted hereunder shall revert to the Author by way of a written reversion letter, together with any existing property originally furnished by the Author.

Commenting on the topic Publishlawyer.com states: “Some other variations of the [out-of-print] clause may state that a book is declared “out of print” if there are fewer than a certain number of books left in circulation, or if your royalties fall below a certain amount for one or more accounting periods, or if less than a certain number of e-books or POD books are sold in a year.”

Publishinglawyer.com offers some good advice on how to deal with “out of print” clauses. “Once a publisher no longer actively is marketing your book and the book has stopped selling in decent quantities, your best bet is to get the rights back and either resell the rights to a new publisher (difficult, but not impossible), self-publish the book (POD publishing is great for this), or cut it up and sell the serial rights to magazines or anthologies, or so on.”

However, there’s a catch. Let’s assume there are no print copies of your book available. If an e-book or POD version is still listed on Amazon or your publisher’s website, is it still considered available? Technically it is.

There have been several reports of publishers asserting that a book never really goes “out of print,’” because POD and other forms of digital publishing allow them to make the books available to consumers on demand and indefinitely.

So in essence, if a copy of your book can be downloaded from the internet, or made available through print-on-demand, you would not be entitled to seek a reversion of rights – even if not a single copy of the book has been sold in years. That seems to be their argument.

Increasingly it’s a stance that is causing friction between publishers, writers and agents. As the Bookseller noted, “Publishers believe that the listing of a work in a catalogue and making it available on websites ensures they are taking the steps to make the work available that the traditional out-of-print clause tried to ensure, whereas authors and agents believe that rights should revert if a minimum sales level is not achieved.”

One agent alleged that all the big corporate publishers are, “to a greater or lesser extent, trying to hang on to rights in perpetuity.”

Some writers’ contracts reportedly don’t even have “out-of-print” clauses that stipulate that they will get there rights back if the publisher doesn’t exploit them after a certain period of time.

Trying to regain the rights to your work could be a nightmare. Unless, of course, you or your agent ensures that from the outset the term “In Print” is clearly defined in your contract and your rights are protected.

Here’s some advice from the Authors Guild to writers published in the US. “Stipulate that your work is in print only when copies are available for sale in the United States in an English language hardcover or paperback edition issued by the publisher and listed in its catalog. Otherwise, your book should be considered out-of-print and all rights should revert to you.

And during your negotiations: “Don’t allow the existence of electronic and print-on-demand editions to render your book in print. Alternatively, establish a floor above which a certain amount of royalties must be earned or copies must be sold during each accounting period for your book to be considered in print. Once sales or earnings fall below this floor, your book should be deemed out-of-print and rights should revert to you.”

Here are some related articles you may find helpful:

How to Read a Publishing Agreement – David Koehser, Attorney At Law

Improving Your Book Contract – The Authors Guild

Kristine Kathryn Rusch takes a more expansive look at book contracts in her article Business Musings: Contract Basics (Contracts/Dealbreakers). It’s a must-read for all writers – indie and traditionally published.

Photo credits- Jeremy Poynting – Bocas Lit Fest.

Bookstore – Wikiwand.com