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Of trains, publishers and agency pricing

(Apologies for the post being late. I’ve been fighting WordPress. For some reason, for the last couple of days, it has refused to play nice with Opera. I hate IE but had to resort — finally — to using it to get the post up this morning.)

Last night, I was talking to Sarah and I asked her what I should blog about today. Nothing was happening in the industry that really seemed to jump out at me and scream “Blog about me!”. I couldn’t find anything I thought needed to be fisked and, since I’d been busy ripping out drywall all day, I hadn’t had time to cruse the blogs and news sites I usually look at when I need inspiration to kickstart an idea. Even when I got up this morning, the well was dry. Then, as is often the case, two sites later, there were half a dozen different stories all wanting to have some additional “face time” on the internet. Here are a few of them, along with my thoughts.

First up is the Amtrack Residency Program. I’ll admit when I first heard about the program, I was excited. I have loved trains since I was a kid. I think it started when I was really little and my paternal grandmother would tell me about how she’d ride the train out to California to visit my aunt and cousins every year. I read everything I could about trains. There was just something about them that called to me. My fascination grew when I was able to spend time in Europe and ride the trains there. So, there was a spark of little girl-like glee when I read the initial posts about the residency program. After all, how cool would it be to be able to ride the rails and write?

Awesome coolness, right?

Then reality came crashing down as I started seeing posts on Facebook and elsewhere about the actual contract terms Amtrak wanted authors to agree upon.

6.   Grant of Rights: In submitting an Application, Applicant hereby grants Sponsor the absolute, worldwide, and irrevocable right to use, modify, publish, publicly display, distribute, and copy Applicant’s Application, in whole or in part, for any purpose, including, but not limited to, advertising and marketing, and to sublicense such rights to any third parties.

That’s right, boys and girls, just by submitting your application, you are granting Amtrak the right to do whatever it wants to with your application. Now, I have no doubt the last thing Amtrak plans to do is publish someone’s name, address, phone number, etc. But you can’t go by supposed intent. You have to look at the actual contract language.

Another concern I have is that they can modify and publish the application, including the application essay. That means they can take part of your, edit it any way they want, and put it out there with your name attached to it as well as your picture. You have no say in the editing and they aren’t required to say that the original text might not be exactly — or even near — to what has just gone public.

Then there’s this language in the contract: Applicant grants Sponsor the absolute, worldwide, and irrevocable right to use, modify, publish, publicly display, distribute, and copy the name, image, and/or likeness of Applicant and the names of any such persons identified in the Application for any purpose, including, but not limited to, advertising and marketing.

I have several concerns with this as well. Let’s start with the fact that once you apply for the program, Amtrak has the right to use your application, essay AND your name, photo or likeness. More than that, they can do it for any reason they want to. Note that the language of the clause states that the use includes but is not limited to advertising and marketing. Worse, they can do this forever. Even publishing contracts have an end clause of some sort, vague though it might be (ask any author who is trying to get their rights back about how vague the language is and how hard it is to get a publisher to release rights now.)

Needless to say, much as I like trains, I’m not going to be applying for the program. Not with contract terms like this. For more, check out what Writer Beware has to say about it all.

One of my go-to sites to find out what’s happening in the publishing industry is The Passive Voice. If you haven’t bookmarked the site and visit it regularly, do so.

In a post about why publishers need to start thinking more like Amazon, PG made the following comment:  PG thinks if Big Publishing was going to pull off any sort of transformation in time to save itself, it would have begun before now. He further observes not the slightest indication that publishers have either the ability or the intention to think like Amazon. They would rather die first. And will.

While I’m not sure we will see the death of the major publishers, I do think we are going to see legacy publishers having to either merge or die. Smaller houses, those more responsive to not only their authors but their readers, will continue to spring up and do well. They may never have the market share of the Big Five publishers, they will be more economically viable.

I think we are also, at least for the near run, see more and more authors going indie or taking the hybrid route. Of course, major publishers hate both routes and have tried to limit an author’s ability to do either through contract terms requiring authors to submit their work to said publisher in a “right of first refusal”. Like the open-ended provisions of the Amtrak contract, there is often no limit on how long the publisher can sit on the submission before the author can then submit it elsewhere or go indie with it.

And we won’t get into where agents fall in this argument. They don’t make money on self-published work. Oh, wait, that’s why we’ve seen a spate of agencies opening their own publishing arms. They’re “helping” their clients self-publish. Just because they are also taking a piece of the pie has nothing to do with it.

Finally, in the whine of the week, I give you Kobo. I’ll admit right here that I have mixed feelings about Kobo. I cheered when it said it was opening its store up to indies and small presses. Not only does Kobo have a larger share of the Canadian EPUB market than Barnes & Noble but I’d heard good things about the company and its CEO. Then I started trying to use its interface and had slow approval times and a serious lack of help when it came to actually identifying why a book might be in perpetual limbo. After that came the whole “is it too explicit sexually” or not dust-up and, well, the shine started rubbing off of the company.

Now Kobo has filed an objection to the settlement announced by Canada’s Competition Bureau between CCB and four publishers that would end agency pricing. In its filing, Kobo says it lost its market share in the US due to the ending of agency pricing. It calls its market share and revenues here as “negligible” and says this will happen in Canada if agency pricing goes away. What gets me is that Kobo should have seen this coming. It’s not like the agency pricing issue happened overnight in the US and was done. It went on for a couple of years. Everyone except Apple and the publishers involved seemed to see the writing on the wall. So why didn’t Kobo start adapting when it became clear here and in England that the agency pricing model, as it existd, was going to be struck down?

A key thing to consider comes from The Digital Reader article linked above:

In short, Kobo is saying that when Amazon was allowed to discount ebooks in the US, Kobo was unable to compete effectively, not even by means other than price (marketing, CS, features, community). This is rather curious because other companies, including Zola Books, The Reading Room, Bilbary, Oyster, and Scribd all seem to be able to compete effectively against Amazon in the US ebook market. Also, (Barnes & Noble saw most of its growth in the pre-agency era, claiming a 20% market share by the end of April 2010. This only grew another 6% to 8% in the following years.)

I have a hard time buying Kobo’s argument. EPUB – the format Kobo sells – is potentially the largest market out there. It isn’t working under the failing business model of B&N. There is no real reason why it should have lost its market share here. There is certainly no reason why it would be hit that hard in Canada where, as I understand, it is the major e-book retailer of EPUB format.

It’s time for Kobo and legacy publishers to look around, listen to what their customers and suppliers are telling them and to adapt. Otherwise, they will continue to lose market shares and go belly up.

15 Comments
  1. Jim McCoy #

    Amanda, now stop. Just…stop. You don’t actually expect legacy publishing to act intelligently, do you?

    March 18, 2014
    • Well, no. But I keep hoping someone with some common sense and an understanding of the market might appear in the magic towers of legacy publishing and heal the rotting corpses. Oh, wait, sorry. That’s the fantasy trying to take hold in my head, not what’s actually happening in the business. Silly me. 😉

      March 18, 2014
      • Even Jesus, when he brought Lazarus back from the dead, told him to come out of the tomb. I can’t see any hope for the rotting corpses of publishing as long as they insist on staying inside.

        March 18, 2014
        • Alan #

          The death of a peer company may be sufficient to wake up the rest.

          March 19, 2014
  2. Even publishing contracts have an end clause of some sort, vague though it might be

    Note entirely, I am sad to say.

    Well, as a great man once said, “Live and learn or you don’t live long.” 😉

    March 18, 2014
    • Yeah. Here’s one that outlived the author, but not the original publisher’s legal department: http://www.thepassivevoice.com/03/2014/judge-rules-for-harpercollins-in-open-road-e-book-dispute/ In short, HC retains sole e-book rights based on a 1971 contract that never mentions e-books.

      March 18, 2014
      • Which is a prime example of why we, as authors, have to have an IP attorney who is familiar with publishing law look at anything before we sign it.

        March 18, 2014
      • I’m not talking about past stuff. I’m talking about . . . no, don’t want to go there. Some folk here know.

        March 18, 2014
    • I know what you’re talking about, David, and agree. Fortunately, not all publishers do what you’re alluding to, not even most legacy publishers. Not that they aren’t trying with their vague language about when something goes “out of print”.

      March 18, 2014
  3. Amtrak, will find out that,like all “overly restrictive covenants,” it won’t fly in court. I’ve posted on LinkedIn, a couple of articles (from Lexology, a newsletter for lawyers and those interested in the subjects) to that effect. What they’ll probably get, are Glittery Hoo Haa’s and Glittery Haa Hoo’s. Like that precious flower that blew through a *$300K advance, and sold only 800 books.* Just see how long _I_ could make $300K last. 🙂

    March 18, 2014
    • Dan Lane #

      Oh, I could burn through a third of a mil fast.

      Pallet of ammo. Plot of land in the sticks. Hardware. Pay off my folks’ debts (what little is left on their house). Long storage food. Get better shocks on my truck. ‘Nother pallet of ammo. Tools. Invest a little for a rainy day. Get a better camera. Buy some good boots. Get a laptop, so I can write when I’m out and about easier. Give a bit to charity. Buy a good steak, and grill it. Take a vacation for the first time in forever.

      Yeah, gimme about a dozen years or so. Maybe twenty, if I’m off grid most of the time. Or more, depending. *chuckle*

      Taxes would suck, though, especially if it had to be reported as earned income. Then there’s capital gains on the interest, when you invest. I’d buy lottery tickets, but then I think about what I could use lottery ticket money for instead. Books! *grin*

      March 18, 2014
      • (grin) OT Dan, but what the hell do you need two pallets for? I mean I have a stock JIC, which for hunting (which is all our meat, and the dogs which I shoot for about every week… If I can’t get the 30 pounds or so I need on one mag… I need to work harder, and I’m no Annie Oakley) will last me out 30 years, and it’s not even a fraction of a pallet. And if it’s for the last defense against the ravening hordes, you need a better piece land in the sticks. Come here. A brick of ammo would do for what we’d get, twice over. Yep, come here, and I’ll have an extra fishing/shooting partner.

        March 19, 2014
        • Dan Lane #

          ‘Cuz I’m a really bad shot? *chuckle*

          Seriously though, putting leetle holes in paper targets from a long way away is fun, too. And I have friends who like to mooch. And I’m something of a hoarder- I come by it honestly. The Great Depression hit everywhere hard, and in Appalachia that turned into “save *everything.* ”

          Which is why I have ten spare axe handles, an old steel-wheel wheelbarrow, a butter churn, a mechanical sewing machine (pedal/pulley type), and a few other odds and ends that are there (and in good working order)… just in case. I know well enough to sort out true junk, but it takes self discipline to actually get rid of something.

          That said, if it ever gets bad enough here, Australia is in the top spot of places to ship over to. And I do mean ship, because if I go, more than like most of the clan will go, and that’s a rather lot of folks. *grin*

          March 24, 2014
    • SheBear #

      I think I could at least do about 7 years at our current spending levels, but I have 2 pre-teen youngsters. Children are money pits according to some.

      March 19, 2014

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