Why can’t Australians buy the ebooks they want?

In the past few months, the world seems to have gone ebook mad. First the Amazon Kindle was made available locally, now we await the Apple iPad, due at the end of May. Plenty of people are already reading on iPhones and other mobile screens, and there are quite a number of other readers available and an ever-expanding choice of online stores from which to buy ebooks. The reader devices vary in price and features, but for Australian users one complaint is common: I’ve paid for the gizmo, now why is it so hard to buy the ebooks I want to read on the damned thing?

The short, but far from simple, answer is that it’s due to territorial copyright, contractual arrangements between authors and publishers and the long-established ways of book publishing—and it’s nothing to do with Parallel Importation regulations (PIRs) in Australia’s Copyright Act (the restrictions that were such a hot topic of debate last year). That’s because PIRs only cover print books. Electronic files are only considered in the Copyright Act if they’re in physical form—i.e: burned onto CDs/DVDs. There is currently no provision in Australia’s Copyright Act that covers ebook files.

A common misconception is that it is Australian publishers that are restricting access to ebooks that are available to readers in other countries; but this isn’t really the case. On the whole it is US (and in some cases UK) publishers who are setting geographical restrictions on ebooks based on (a cautious reading of) their existing book contracts.

In the simplest (and for this example the best) case an author would sign a global contract with one publisher to sell their book in all markets and in any and all formats. In reality, for the vast majority of books, authors grant only certain rights to their publisher, and usually they choose a different publisher in each major territory. So a US publisher may well acquire print and electronic rights for a particular book for the US market only; meanwhile the author (via their literary agent) is shopping around for the best offer and will try their hardest to sell separate rights to publishers in the UK, to Canada, to Australia and translation rights to other countries, and they may or may not sell electronic rights along with print ones. At the moment, the US is leading the way when it comes to ebooks, so any geographic restrictions imposed on the US publisher in a book contract are coded into their ebook files at the time of their conversion and are a layer of the Digital Rights Management (DRM) that virtually all publishers insist on—and with which retailers have no choice but to comply.

Few ‘global’ books

Publishing is increasingly international, with about half a dozen dominant global players (Penguin, Random House, Hachette, HarperCollins, Macmillan and Simon & Schuster), but there are very few global books. Even the most recognisable of international bestsellers will often be published by a different company in each territory (for example, Stieg Larsson’s Millenium trilogy is published by Quercus in UK, and that edition is distributed via Murdoch Books in Australia, but Random House is Larsson’s publisher in the US). In a borderless online world, you can begin to see the problem: if an Australian customer downloads an ebook from Amazon.com in the US, which publisher receives the revenue?

Authors have traditionally been advised by their literary agents and by authors’ associations to parcel out their rights territory-by-territory and format-by-format, and are strongly advised to guard against selling all their rights in a book to one company, even, in most cases, to a large global publisher. The result is that a book will have a different publisher in each territory around the world—it may be re-edited for local language and will almost certainly have a different cover design and format to suit each market. Authors also have grave concerns about royalty arrangements for ebooks and are being warned against signing blanket, retrospective agreements for older books if/when publishers seek to digitise them. (Conversely, some authors are expressing their frustration at the slow pace of change among large publishers and if they have retained electronic rights they are producing their own ebooks independently of their print publishers, or they are selling ebook rights to a single ebook provider such as Kindle.)

In short, Amazon (or Kobo, or Barnes & Noble, The Book Depository, or locally, Dymocks) can’t sell you ebooks for which the copyright holder (usually the author) hasn’t explicitly granted the publisher rights to sell in Australia. And as a publisher told me just the other day ‘many existing contracts simply don’t specify that there are such things as “Australian ebook rights”’: in the case of the great majority of books already published, no-one currently has the legal right to sell you an ebook in Australia, regardless of whether or not an ebook of that title is for sale in the US or UK.

Things are changing, and authors, agents and publishers are considering ebook rights as they sign contracts for new books and are in the midst of the massive task of renegotiating terms on existing ones. But it will take some time before there is anything like the number of ebooks available to the Australian market (or even the UK) as are already available in the US. Apple may well be the catalyst, or Kobo, to really get things moving with Australian rightsholders: by the time iPads go on sale here and by the time Kobo rolls out via A&R and Borders in May, they will need to offer both local titles as ebooks and to ensure that international titles for which there are separate Australian rights are made available electronically to Australian readers. But if you’ve bought a Kindle … my recommendation would be to not hold your breath or you’ll be very blue by the time Amazon is able to offer you more ebooks.

Tim Coronel is publisher of Bookseller+Publisher magazine.

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