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The Only Thing Worse Than D Publishing’s Fees is Their Contract

December 16th, 2011 by · 6 Comments · opinion

Editor’s Note: I feel D Publishing isn’t getting nearly the attention it deserves, so I strongly urge everyone in digital publishing world to read this and then go look at the FAQ and contract for D Publishing.

Dymocks, often cited as Australia’s largest bookseller, recently launched their publishing arm, D Publishing.

There has been some criticism over the pricing of their formatting and conversion services, but a much bigger controversy concerns the Publishing Agreement posted on their website.

I wrote on Facebook about my concerns with their Publishing Agreement the day it was made available on the D Publishing website (Thu Dec 8 – Aus time). I’ll note here that I was not the first to express concerns about the Publishing Agreement but my post became a convenient place for people with concerns to link to because I outlined a range of concerns in one post. I also posted an article (D Publishing by Dymocks Books –AUTHORS BEWARE) on Fri Dec 9. The article linked to here, discusses serious concerns posed by the content expressed in the Publishing Agreement. The key sentence is perhaps: “While an author would have the right for their name to be attached to the work, they are essentially HANDING OVER CONTROL OF THE COMMERCIAL ASPECTS OF COPYRIGHT WORLDWIDE, INCLUDING ALL SUBSIDIARY RIGHTS, FOR THE DURATION OF THE COPYRIGHT.”

On Fri Dec 9, Dymocks/D Publishing took down their Publishing Agreement and replaced it with a new version.

You might think this would be the end of it. However, I and a number of other people looked at the new version of the agreement and realized the same problems were still there. I updated my post, mentioned it on Facebook and Twitter, and suggested to D publishing and Dymocks that they fix the Publishing Agreement. When they replaced the Publishing Agreement on their website, they removed the website page where it was originally located. This broke the links in initial Facebook comments but, without a url for people to link directly to the Publishing Agreement, my post became the most convenient point for people to link to – so people with concerns linked to my post over the weekend. Over the weekend, I also sent an email to the email address provided on the D Publishing website. In the email, I suggested they do themselves a favour and fix their Publishing Agreement, as I foresaw the potential for disputes to happen between them and their authors, and that many would probably look upon the relationships established in their Publishing Agreement in an unfavouarable manner when the implications of the Publishing Agreement play out.

On Mon Dec 12, they contacted me and I spoke with Dymocks General Manager of eCommerce, Michael Allara, and Dymocks legal counsel. I also spoke with Michael at the Dymocks Head Office for about 4 hours on Wed Dec 14. I discussed the problems with the Publishing Agreement and some of the concerns people have expressed online. On Wed Dec 14, Bookseller + Publisher had an article (Dymocks Responds to Criticism of D Publishing Contract) online. I suspect that Michael Allara’s comments in the Bookseller + Publisher article were made prior to our discussion at Dymocks Head Office. In the article, publishing consultant Alex Adsett says there are major problems with the Publishing Agreement (Alex says: There seems to be a disconnect between [D Publishing's] FAQs and the Contract, but unless it is amended, I would not recommend any author sign the publishing aspect of the deal), while Michael Allara put it down to people interpreting the Publishing Agreement out of context (Michael says: This process has helped us understand how technical legal contracts can be interpreted out of context). The comments I have come across online tend to agree with Alex Adsett’s concerns about the content of the Publishing Agreement and, in some cases, seem a little insulted by the suggestion that they, as people who work with words and their meaning on a daily basis, cannot grasp the technical aspects of the agreement.

Given that I spent about 4 hours with Michael on Wednesday afternoon and discussed in detail what the problems are, what the concerns I have come across are, and suggested possible solutions, I would hope that he now understands that there are problems with the content expressed in the Publishing Agreement and that, as I wrote on Friday, it is not just a matter of comprehension.

Michael described the intentions of Dymocks/D Publishing as he tells them to be, and if the Publishing Agreement is amended to reflect the intentions described to me without requiring authors to license rights exceeding what is required to carry out those intentions, a good offering could be made to authors. Until the Publishing Agreement is amended in such a way, the problems remain.

Michael told me a new revision of the Publishing Agreement should be released in the coming days. I hope the new wording will clear up all the problems, but let’s wait and see. I encourage anyone considering publishing with Dymocks/D Publishing to get hold of the new agreement when it is released and determine if it is acceptable and appealing to you.

Some people question how a large company, with a long history in the book industry (albeit focused primarily on selling and not on being a publisher/distributor/agent as well), with their legal counsel, a former New South Wales Premier on their Board, etc, could get their Publishing Agreement so wrong. The question has even been asked: Could this be Australia’s worst publishing contract? I am not concerned with what went wrong or who is to blame. I just hope the new Publishing Agreement will make a good offering, so authors and Dymocks/D Publishing can proceed with mutually beneficial relationships and provide great books for readers. Maybe they’ll get it right, but if they don’t just use another option like CreateSpace.

Some have discussed wider concerns recently about vertical integration (where one entity is publisher, distributor and retailer, and also agent in the case above) in the Australian book industry, with Pearson purchasing the Angus & Robertson website following the collapse of REDgroup Retail and Penguin (owned by Pearson) launching the publishing aspect of their Book Country ‘writing community’. Some would like the vertical integration of the book industry to be legislated against, as it was with the US cinema industry in 1960. But that was in a business environment where demand far exceeded supply and access to the best available technologies were limited and protected by just a few patents. The practical reality is that there will be more and more publishers/distributors/agents/retailers all in one. The important thing for an author is to look carefully at what would be required of them and at what is actually going to be provided to them in return before entering an agreement.

Steve Rossiter
- Editor, The Australian Literature Review (www.auslit.net)

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