Two controversies generated by electronic technologies currently preoccupy students of publishing law: first the apparent nonsense made of publishers' territorial rights by the growth of bookselling via the Internet; second the arrival of "Print on Demand", whereby very short runs and even single copies of out-of-print books can be computer-printed to an individual purchaser's order. This latter development may logically invite a radical reappraisal of the whole author-publisher-reader relationship.
The Bookseller of November 6, 1998 reported that Macmillan, following Wiley UK, has launched such a scheme to include up to 1,000 out-of-print titles in 1999: "The service will enable Macmillan to supply single copies without holding books in stock or reprinting huge amounts... It is Macmillan's mission to keep works of academic value in print on a permanent basis." This announcement prompted an interesting exchange of letters between Mark Le Fanu (27/11/98 pp. The Society of Authors), Richard Charkin (11/12/98 pp. Macmillan) and Maureen Duffy (1/1/99 pp. The European Writers' Congress). [Click to access this correspondence] In America, Simon and Schuster already has over 9,000 books similarly available, and Oxford and Cambridge University Presses have both licensed an American company to produce substantial numbers of their out-of-print titles on demand. CUP has owned up to the practice, but OUP's overworked Public Affairs Department has repeatedly and categorically denied any involvement in it, despite the appearance in some recent OUP authors' contracts of the phrase "single copy reprint", and the fact that OUP's licensed website is there for all to visit.
Laser printing has developed in-line machine systems (the IBM Infoprint and Xerox Docutech, for example) which either from computer disk or from scanned originals can automatically, and in literally a minute or two, produce the collated sheets, printed on both sides, of small-format books. This bundle of sheets can then be trimmed and perfect-bound (glued) into a choice of covers - rudimentary for cheapness, colour-laser-printed for verisimilitude - to produce what would probably, under usual dictionary definitions, qualify as 'a book'. The details of the cover, binding and trimming may of course vary, and the finish of such facsimiles is certain to be of lower quality than their lithographed originals, but the margins, both technical and financial, between the old print processes and the new are rapidly closing; the days of short-run, plain text, lithographed books are numbered.
Wiley and Macmillan produce their 'on-demand' books in glued bindings with undesigned board covers printed in black with just the book's title, author and publisher's colophon. CUP (like OUP) uses an American licensee which specializes in facsimile work and reproduces the books' original 4-colour covers. Oddly, neither Wiley nor Macmillan could provide a list of which of their titles are now being printed on demand; when an order comes in, they simply fulfil it this way if they find the original lithographed 'hard copy' to be out of stock. CUP, on the other hand, has 70 on-demand titles listed on its licensed website alongside OUP's 45 [by January 2001 risen to about 650 and 230], though these may represent only fractions of their totals. When a purchaser orders from Wiley, they are not told that they may be getting a PoD copy, which is unreturnable, while Macmillan pre-confirms with its purchasers that PoD will be acceptable, and CUP maintains that its PoD product is indistinguishable from the original so no such problem arises. Wiley's, CUP's and OUP's PoD copies sell at their original prices, while Macmillan's are always more expensive. Neither Wiley nor Macmillan could confirm that they inform their authors of their books' PoD production, and CUP asserted that they are under no contractual obligation to do so.
My guess is that very few authors whose books are now being printed on demand are being informed of the fact. All the publishers who have so far embarked on PoD expressly claim that by keeping these titles "permanently in print", they are ensuring that the copyright in them need not revert to their authors under their contracts' traditional 'reversion' clauses, and incidentally absolving them, they hope, of any contractual obligation to report any change in production. (Their claim and hope aside, it does not, however, absolve them under the the Publishers' Association Code of Conduct, 1982/97, which states that "the publisher should keep the author informed of important design, promotion and marketing decisions... The fullest reasonable consultation with the author on such matters is generally desirable, both as a courtesy and in the interests of the success of the book itself. In particular the author should, if interested and available, be consulted about the proposed jacket and jacket copy...")
Contracts have always varied, of course, from publisher to publisher, agent to agent, author to author, and book to book, but many terms have been standardized. For example, the 'Reversion' or 'Cancellation' clause from OUP's printed Memorandum of Agreement dating from way back and applicable through the 1980s goes:
"If after the Work is out of print and is not available in any edition issued by the Publisher or authorized by him the Author shall call upon the Publisher to reprint the Work and if the Publisher shall not within eight weeks after he shall have received a written request to that effect agree thereto the Author may require the Publisher to resign all rights in the work and the Publisher shall thereupon at the Author's request and expense assign the same to the Author absolutely without prejudice to any claims the Author may have under this Agreement and to rights in the Work already granted to third parties under this Agreement."
In other words, subject to written request, if a book goes out of print for more than eight weeks, the copyright in the text reverts to the author, who is then free to try to get it republished elsewhere or to do with it what they will. Suppose, for whatever reasons, the author of a book which was now being printed by their publisher on demand sought the reversion of their copyright. Could the publisher sustain at law a counter-argument that under such a clause they were thereby keeping the book 'in print' and so retaining their rights in it?
In practice, this question will be answered only when someone brings a test case, a development which may not be far off. A cardinal principle any court has to apply in deciding the implications of any contentious contract or clause (for example the meaning in the above of the word 'reprint') is to try to establish what was contemplated by the parties when the contract was agreed. By this test, with respect to all older contracts, the publisher's claim at once would certainly fail. The print-on-demand process is new, while what was contemplated by the parties when they signed up was a substantial print-run (or reprint) of properly lithographed and bound and jacketed copies. Indeed, the very inclusion of such a clause demonstrates that the possibility of push-button, single-copy production was not at the time contemplated by either party. Then there is the literal point that "stored as a computer file" cannot possibly mean the same as "in print" or "available in an edition". Publishers who think that they can perhaps circumvent this by always keeping in their office at least one saleable laser-printed 'hard copy' of every book (and a CUP spokesman advised me that "it would be more helpful to think of a single on-demand copy as just an ultra-short print-run") should be reminded that there is now a fair amount of law in the archive as to what constitutes "a reasonable publication," law which a court would probably extend by implication to "a reasonable reprint". It was contended, for example, in Abrahams v. Reiach (1921) that a publisher's obligation to publish under the contract would have been fulfilled by their production of just one copy, but this was immediately rejected by both courts (the case went to appeal), who instead assessed "a reasonable publication" (of an athletics training book) as respectively 30,000 and 6,000 copies. In my own 1991 assessment hearing, Harvey McGregor Q.C. for Oxford, briefly argued the same line, but quickly abandoned it, and in the end I was awarded damages based on an assumed sale of my philosophy text Making Names of 15,000 copies. Last year (1998), in a case founded on mine, Geoffrey Myers was awarded similar damages against Macmillan on an imagined 12-year sale of over 80,000 copies of a business-English course book.
Are there any grounds for asserting that the inferior quality of PoD fails in any case to constitute a book's proper publication? Suppose, to save costs, (for example, in an attempt to 'fulfil' contracts about which they had changed their minds, like those of the twelve poets dropped by Reed in 1995) publishers were to start using this technology for their short first print-runs as well as their reprints [see update the rise and rise of p.o.d.] would authors have grounds for claiming that such production breached their agreements?
As was established in the Abrahams case and my own, matters concerning a book's production and marketing (most notably its format, print-run and price) are nowadays normally at the publisher's discretion. Perversely, although clause 5 in OUP's Memorandum expressly stated that "the Publisher shall print and publish the Work in such edition(s) as he considers appropriate... and shall have sole control of all details of production advertising, price, sale, and terms of sale of the Work," and despite the facts that their editor had actually arrived at a consensus with me on these points and that he had then demonstrated his 'sole control' of them by issuing internal instructions without further reference to me, Oxford argued on appeal in 1990 that our contract was incomplete on the grounds that these figures had not contractually been agreed. This obliged me to present evidence that formats, (minimum) print-runs and prices were rarely specified in contracts, and I had to recruit expert witnesses, including Mark Le Fanu, to testify on the point. Oxford opposed the introduction of this evidence, but when it was admitted, conceded its truth, and thus I won the case. Curiously, in the Society of Authors 1997 Quick Guide, Le Fanu contradicts his testimony with the statement: "It is usual (in a contract) for the form of publication and the approximate published price to be specified - and preferably the anticipated size of the first printing." Is this wishful thinking, or has the practice, perhaps as a result of Malcolm v. The Chancellor Masters and Scholars of the University of Oxford, changed over the intervening years? I do not believe that it has, and I have met no-one in the trade who believes that it has. OUP's clause 5, renumbered, has not changed, nor has the P.A.'s code, which states, now as then, that "the final responsibility for decisions on the design, promotion and marketing of a book is normally vested in the publisher," and Hugh Jones' 1996 text Publishing Law (Routledge) expressly confirms that these matters are still normally at the publisher's sole discretion. Publishers may therefore think that under most contracts they have the legal right to laser-print a book if they so choose.
However, whatever may or may not be the case with respect to what is and is not normally specified in such contracts, it does not follow that a publisher has carte blanche in the fulfilment of them; however much discretion the publisher is expressly or implicitly allowed, failure to achieve certain minimum standards could certainly constitute a breach. This was demonstrated in the case of Steans v. West (West London County Court, 24th June 1996), in which a an authoress successfully sued a crooked vanity publisher on the grounds that the books he produced from her script were defective in respect of their typesetting, their printing and, most notably, their cover and binding. There seems to be absolutely no reason in law why similar defects should not constitute similar breaches in respect of ordinary commercial publishing, especially given that here an author's reputation is an added consideration (and an established head of recoverable damages). An author who discovered that his or her book was being laser-printed and plain-bound might, inter alia, argue that their reputation was thereby being harmed. Also, there would be an overwhelming amount of evidence available on past (lithographic) custom and practice, which is certainly being changed with the introduction of these new techniques.
As far as I know, no-one has so far brought a case which specifically hinges on the laser-printing point, but if anyone were to do so, and if the court, suitably apprised of the publishing-law minefield presented by the new single-copy technology, were persuaded of the need to 'draw a line in the sand,' for example as to the meaning of the words 'print' and 'reprint', then the laser-printed (or computer-printed) v. lithographed distinction might well provide it with the clearest, most easily demarcatable ground on which to do so.
But why would an author being printed-on-demand want their rights to revert? Surely they, along with their readers, should be grateful (this, of course, is the line of Macmillan's Richard Charkin), that their work is still being kept available? Surely it would be crazy to suggest, now that this wonderful new single-copy technology is here, that publishers should not use it, or should waste masses of paper and money on print-runs of books only very few of which they will ever sell? No doubt many PoD authors don't care how, or even whether, their books are printed, or about their meagre earnings from them, and indeed many may be past caring altogether, that is, dead. But some might think differently. They might feel that being printed on-demand was not what they had in mind when they signed up. If all the publisher does is laser the text from a computer disk or a scanner, add a cheap cover and charge £75, then perhaps the author could do this at home (or down at the nearest Docutech shop), probably better, and for a fraction of the cost.
Gunter Grass famously described modern publishing houses as mere filing cabinets full of contracts, to which might now be added safes full of computer disks and drawers full of mailing lists. In a world where most authors write on computer, sometimes even in typesetting programmes, and readers' telephoned, single-copy orders are printed one at a time, the publisher seems to have become little more than a handler, a disk-agent marrying readers with scripts. On the face of it, such a service might be thought worth a commission of, say, 15 percent, yet under existing contracts, publishers may be entitled to an astonishing 90+ percent of any profit (in my damages assessment, Oxford argued that less than five percent was a fair paperback royalty), which in a 'net-receipts' deal they would calculate after the deduction of their own huge administrative costs. It is hard to believe that this simple, entirely risk-free 'service' represents good value for either the author or the reader.
The notion of risk is legally all-important. Over the years, most of the rights ascribed in law to publishers have rightly been based on the premise that in the publication of most works, it is the publisher who takes all the financial risk. Traditionally, it has been the publisher who pays for the typesetting, cover-art, blockmaking, printing, advertising, distributing and sundry other expenses involved, including any advances paid to the author. For making all this risky investment, the publisher is recognized as being entitled to a fair share of any profits earned from the book, and when the author sees their effort nicely printed, glossily bound, displayed in bookshops up and down the land, and perhaps even reviewed here and there, they may think their ten percent royalty a reasonable stake in the whole complex operation. But when none of this applies, and the 'publisher' has become instead just a 'to order' button-presser, the author, and the law, is likely to take a very different view of what constitutes 'a fair split.' Incidentally, all this also argues for authors' increased proficiency with computer DTP programmes so that, perhaps to a publisher's requested page-layout, they can provide their texts already typeset, thereby retaining these rights too (the CUP spokesman actually claimed that out-of-print authors would not be allowed to get their books scanned themselves because the publisher held the rights in their design).
Non-technophobic authors may conclude that self-publication is now the way forward, and will perhaps discover that in the Internet Age this need not be as difficult or distasteful as it sounds. Who needs a disk-agent, when the WorldWideWeb is a mass of free public archives, search-engines and mailing lists? Surely burrowing readers and specialist authors can find one another personally, and make their own arrangements, especially in the worlds of scientific, technical and academic research, most of whose institutions are permanently on-line. And if authors or their heirs don't want to deal with their readers directly or hate the hassles of laser-printing, they may prefer a better 'disk-agent' deal than their present one, a deal which offered, say, 85 percent. Before publishers snort in derision at such margins, they should be reminded by a glance through the law library (e.g. Reade v. Bentley in 1857, Griffith v. Tower Publishing in 1896), that not so long ago a 50/50 profit split between author and a risking publisher was common. In his Bookseller letter, Mark Le Fanu raises the further possibility of out-of-print Macmillan authors securing proper, and perhaps better re-publication deals with other presses. In short, there are several powerful reasons why authors with existing contracts might wish to enforce the reversion of their copyrights in their out-of-print (printed on demand) works, and there is waiting to be set an important legal precedent which would at once allow them all to do so.
What of future contracts? Obviously, clarity is the chief requirement. A publisher and an author can contract whatever they want, provided their terms are unambiguous, and, as far as possible, any problems are foreseen. Over recent years, contracts have thus steadily lengthened as publishers have incorporated into them more and more detail about envisaged electronic media, CD-ROMs and suchlike. The appearance of Oxford's "single copy reprint" clause now demonstrates the urgent need for a complete rethinking and public clarification of the whole rights-reversion principle. Le Fanu does not mention older contracts, but suggests that in future reversion should be related to books' annual sales, suggesting a threshold of 100 copies [Click for letters], and I gather that some agents' contracts already apply such a formula. OUP, however, has informed some of its academic authors that their books cannot now be viably reprinted (lithographed) unless annual sales of at least 1,500 are anticipated - hardly a bridgeable gap. To me therefore, it seems more important than ever that authors (and their agents) should extract from publishers minimum undertakings as to the format, print-run and price not only of a book's first printing, but also of its print- and reprint-and-binding methods or models too. Some authors might wish, for example, expressly to prohibit the laser-printing of their scripts, if only on the grounds that they can do that themselves. Again, before publishers go into impractical snort-mode, a glance at Sweet v. Cater (1841), a case, appropriately, concerning the publication of a law book, will remind them that it is perfectly easy to formulate, in about thirty words, a complete agreement on all of these matters: "2500 copies of the work" were to be printed, to be "sold to the public in boards for £3" and "to correspond in type and page" to a previous book. The model specified was The Treatise of Powers. Enough said.
A September 2000 advert for Lightning Print (by then renamed Lightning Source) reads: "Thanks to more than 600 publishing partners around the world, Lightning Source has now produced more than 1.3 million print-on-demand books. We have just added the 15,000th title to out digital library, with commitments that will more than double this number." Also, The Bookseller on 8th December 2000 carried an excellently succinct survey of the PoD scene PoD explained by LightningSource chief operating officer Larry Brewster. Click for p.o.d. news updates (Bookseller articles, 14 & 28 July 2000). October 2003: Lightning Source announces the production of its 10 millionth on-demand book. Spring 2004: Lightning Source ties up with Penguin USA (following tie-ups with Digital River, Vista, X-Libris, Holtzbrinck, Dawsons (UK), Gardners (UK), etc., etc.. Then...
If I am right (a) that the days of the short-run, lithographed, plain-text book are numbered and (b) that in the near future an author with an existing, older contract will be successful in establishing the general legal right of such authors to recover their rights in their printed-on-demand (i.e. out-of-print) works, one may envisage an interesting new scenario and ask some interesting new questions.
What happens, for a start, to the (stock-market) value of the big publishing houses with their extensive, prestigious backlists? If computer-printing becomes the rule for short-run books (first editions and otherwise, academic and otherwise), and computer-printing becomes the legal 'line in the sand' for reversion under authors' older contracts, everyone would then theoretically be (re)starting from scratch. Although nobody, presumably, is yet making much significant money out of printing-on-demand, this explains why all the established publishers are so keen to jump on the 'single-copy-reprint,' 'ultra-short-print-run' bandwagon. If their 'permanently-in-print' claim were to fail at law, they would at once all be notionally asset-stripped. Another recent correspondence in the Bookseller suggests that the proportion of the big publishers' profits derived from their backlists is surprisingly high, between 60 and 80 percent.
By chance, the very day the TLS published An Ultra Short Run, the Summer 1999 issue of The Author appeared, featuring two small mentions of print-on-demand. The first was by Mark Le Fanu, who, in the Front Line opening news section reproduced the Bookseller correspondence, adding:
"We are reviewing with agents how termination clauses should be amended. For example, a work could be deemed out of print if average annual sales over a two-year period fell below a certain figure (a mechanism that features in many of our Minimium Terms Agreements) or if royalty income to the author over a given period does not exceed a specified figure. A work should not be considered to be "in print" simply because it is available in print-on-demand form. Bear in mind also that some publishers' contracts say that a work will be considered in print even if the only edition available is a publication which has been sub-licensed. It will be necessary to ensure that the definition of "in print" excludes sub-licences (especially as the right to print on-demand could be sub-licensed to another business).The new technologies give publishers and authors many advantages. It is becoming increasingly economic to reprint in very small numbers, so there will be much less wastage from overstocks and remainders. But we must ensure that contracts adequately and equitably address issues which are raised by these developments."
The second contribution, from Derek Parker, the editor of The Author, appears in the journal's closing On the Side miscellany:
"Interesting tidings from America: Vivisphere Publishing will now offer both new and out-of-print books "on demand". They won't have piles of books lying in warehouses waiting for customers to buy them - instead, receiving an order for a book, they will print a copy especially, in a matter of minutes, bind it, and send it off. The text will be stored in digital form in Nashville, Tennessee (this costs only $17 a year, as opposed to high warehouse charges), and it is claimed that by using this method of publishing, "books will never go out of print".Initially, no advances will be paid on new books published in this way, but the Press and authors will receive $2 for each book sold, and the author's rate will increase in line with the sales figures. So far, Vivisphere are working with Mackintosh and Otis Books, and with a particular American agency (Great Marsh Press). Both publishers and, I guess, authors will be keeping their eyes on a fascinating project."
Hilariously, when The Society of Authors (The Author) finally got round, in the Spring 2000 issue, to publishing anything like an in-depth article about print-on-demand, they got a publisher to write it, and, funnier still, chose the very CUP man - Michael Holdsworth - who had blurtingly complained to me "I think you are getting too hung up on the phrase 'single copy'; you should think of a single copy of a book as being just an ultra-short print run", thereby gifting me the title for my above TLS article. Presumably with The Author's blessing, amongst other things, Jobsworth writes:
"The industry-standard contract allows for the return of rights to the author when the work goes out of print. Self-evidently, with on-demand printing offering the prospect of 'eternal life', any such reversion may be deferred indefinitely."
I wrote a letter (a neat summary of the whole PoD position + a note on CUP's prohibited donations) to The Author for the Summer 2000 issue remarking this fine coincidence and unpardonable untruth, but, needless to say, it went unpublished. Welcome, comrade scribblers, to Quisling City.
In case I be accused of distortion or paranoia, and in the interests of fairness and of knowing one's enemy, I include the full text of Jobsworth's article Eternal Life, appropriately reversed out, with photo. While much of the article is, fair enough, a straightforward recounting of the new technology's advantages from a publisher's point-of-view, much is legally naive or misleading or question-begging, and some of his assertions, such as the paragraph quoted above, are outrightly false. Jobsworth, of course, is running scared, and his motives are clear and understandable. What are not so clear and understandable are the motives of the Society of Authors in peddling such disinformation. Maggie Thatcher famously averred that there is no such thing as Society. Now, authors, one can see exactly what she meant.
The Spring 2001 issue of The Author featured a survey made by the Society of Authors of (the trade variations in) e-book royalties, a subject not unadjacent to print-on-demand (and where 'publishing', again, starts to look more like computer-disc-agency). Some readers may detect echoes in the survey of An Ultra Short Run and a gently increasing militancy on the part of the Society. Its chosen 'publishers' include: Barnes & Noble, Random House, Taylor & Francis (& Routledge), OUP (Questia), and NetLibrary. Click now for the preamble and full survey E-book Royalties or for AKME's OUP Encyclopedia File (Encarta/OUP/Questia/NetLibrary).
There are numerous websites relevant to Print-on-Demand. A recent phrase-search I made on Yahoo yielded over 1700 entries, most of which were U.S. companies advertising Docutech or Infoprint services. As indicated in Maureen Duffy's Bookseller letter, one helpful site is Books on Demand.com, run by the Swedish telecommunications operator Teldok, who on request will mail a free copy (printed on demand, of course) of One Book at a Time, a 'research odyssey' by Maja-Brita Mossberg on the spread of this new technology. For peoples with non-international languages like the Swedes, print-on-demand or print-in-short-run production is obviously of especial interest, for it offers their literature a chance of remaining viable in the face of the monopolistic power of English-language publishing. Mossberg's book does not address the reversion-of-authors'-rights question, but does contain much food for thought, viewing PoD from different perspectives and quoting a variety of interesting opinions.
OUP's and CUP's American on-demand licensee is Lightning Print (Source) Inc., of 1136 Heil Quaker Boulevard, La Vergne, Tennessee, USA 37086. Lightning Print is a subsidiary of US book wholesalers Ingram Corporation, which in November 1998 was bought out by US bookselling giant Barnes & Noble. The takeover caused a storm of protest throughout the US book trade, for it seemed a clearly anti-competitive move that threatened the freedom of the entire market (Ingram had been the principal supplier of America's independent bookshops). In December, The Federal Trade Commission (the American equivalent of UK's Monopolies and Mergers Commission), prompted by Senator Ron Wyden, launched an investigation into the deal.
Click to return to the top of this file.
Click for the Bookseller correspondence
Click to access Lightning Print/Source.
Click for AKME's collated list of OUP and CUP printed-on-demand authors and titles, together with a list of other participating publishers, and various notes.
Click for PoD news updates (Bookseller articles, 14 & 28 July 2000)
Click for THUNDER BOLT HITS LIGHTNING SOURCE April 2004: OUP's and CUP's print-on-demand agent loses $15 million patent suit over "willful infringement".