Alex Adsett on the third draft of the D Publishing contract

Alex Adsett writes:

After facing prolonged criticism over the first two drafts of its publishing contract, D Publishing have released a new version of their publishing agreement in time for the new year. While the latest version includes genuine improvement, providing additional explanations and addressing some of the concerns raised, it still has not remedied two of the biggest failings of the first.

Essentially, D Publishing still have the right to change the fee structure and (almost all of) the terms of the contract at any time, and the Author still has no recourse to terminate the contract.

Positives

To first look at the positives, D Publishing have amended the contract to properly reflect what they said were their intentions in the first place, and so the Author clearly now has the right to distribute their Work in channels not being exploited by D Publishing.

The Author has the option to nominate whether they want to (a) use D Publishing to publish in Core Distribution Channels only (ie. Dymocks stores, Dymocks online and Google ebooks), or (b) allow D Publishing to control Secondary Distribution Channels and subsidiary rights as well.

At present D Publishing have not nominated any Secondary Distribution Channels that they intend to exploit, but I understand this is intended to cover other e-retailers such as Amazon, or agreements with other Australian bookshops.  When they do commence selling in these areas, Authors that have chosen this aspect of the service may benefit from the superior clout of D Publishing, but are also restricted from exploiting this area themselves.  Although still subject to change completely at D Publishing’s discretion, the Rate Card currently sets out that D Publishing will retain 20% commission from exploitation of Secondary Distribution Channels.

D Publishing have also limited the Subsidiary rights they may hold to non-exclusive i) anthology & quotation, ii) extracts, and iii) condensations, with the license and fee split subject to the Author’s consent.  This is a big improvement from the previous position where D Publishing could claim exclusivity over all subsidiary rights and unilaterally decide their percentage of income.

In an important allowance, D Publishing must obtain the Author’s consent before adding any new channel to the Core or Nominated Secondary channels.

Negatives

Unfortunately, despite the improvements with clarity and transparency, the D Publishing contract still does not allow the Author to reasonably terminate the contract. In a small concession, the term of the contract is now ten years, with automatic ten year renewals if the Author fails to nominate otherwise.  Although D Publishing have the right to terminate the contract upon 30 days notice at their convenience, this right has not been extended to the Author.  Even goliath Amazon allows Authors to immediately terminate their distribution, subject to delays for removing digital copies and selling through of existing stock.

Standard commercial publishing contracts (with publishers who actually invest their own resources into a Work) allow for reversion of rights when a Work is out of print or no longer selling.  Self publishing or vanity press contracts allow for termination at the Author’s discretion. The D Publishing contract includes neither of these options, and the Author may remain trapped into the arrangement with D Publishing, unless D Publishing manage to breach their nebulous obligations or go into liquidation.

To further illustrate how unreasonable it is for an Author not to be able to walk away from the contract, in clause 21, D Publishing still reserves the right to change the terms of the contract or any of the fees payable to the Author, at their complete discretion. (Although Note 15 indicates commercial terms cannot be changed, clause 21.1 says otherwise.) Rather than drafting reasonable provisions in the first instance, D Publishing advise that the Author should trust in consumer protection legislation, potentially forcing Authors into complicated legal arguments.

Absurdly clause 21 includes the line, “The Author is deemed to accept changes to this Agreement by continuing to use D Publishing’s publishing services” while the contract still does not allow the Author any right to terminate.

Additional concerns with the contract include:

  1. The Author is not able to license any part of the Work to another publisher, whether or not this infringes the license with D Publishing (clause 3.4).
  2. D Publishing has the right to make unlimited chapters available for free (clause 9.2).
  3. If D Publishing decide a legal review is necessary, the cost of this legal review is to be paid by Author, who has no option to refuse or terminate (clause 10).
  4. The warranties and indemnities (clause 11) are still very broad and onerous.  This is not unusual for a self publishing contract, but the Author should be aware of the risks involved.
  5. There is the implication that the Author can only take legal action against copyright infringement if D Publishing has declined to do so (clause 13).
  6. Under the available version of the contract, Authors are still not allowed to use an ABN, although there is at least now an acknowledgment that an ABN compatible contract can be requested (clause 18).

Despite the improvements with this version of the D Publishing agreement, I would have serious reservations about any Author signing the contract.  The complete lack of adequate termination provisions leaves the Author with no ability to walk away in the face of inaction, incompetence or shrinking returns.  D Publishing’s ability to amend the contract whenever they choose and the contract’s generally one sided nature could be grudgingly acceptable if the Author had the right to abandon the arrangement.

Alex Adsett is a publishing contract consultant. This post first appeared on Alex Adsett Publishing Services.

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