A dispute over the rights to e-book editions

Please note that this post is from 2009. Evaluate with care and in light of later events.

That publishers and authors (or their estates) should be arguing over rights to production electronic editions (a growing market thanks to new products like Amazon’s Kindle) is no surprise. This sort of dispute is a standard part of contract law, and comes up anytime a new market not anticipated in a contract opens up.

William Styron may have been one of the leading literary lions of recent decades, but his books are not selling much these days. Now his family has a plan to lure digital-age readers with e-book versions of titles like “Sophie’s Choice,” “The Confessions of Nat Turner” and Mr. Styron’s memoir of depression, “Darkness Visible.”

But the question of exactly who owns the electronic rights to such older titles is in dispute, making it a rising source of conflict in one of the publishing industry‘s last remaining areas of growth.

via Authors and Publishers Argue Over Digital Rights to Older Books – NYTimes.com.

While the dispute is, in many respects, not really new, I still think its interesting that the courts so far seem to be on the side of authors (but remember, this is really about individual contract interpretations, not really about broad categories of disputants, although broad cases could influence future decisions):

In 2002, Random House sued RosettaBooks, an e-book publisher, for copyright infringement when Rosetta signed contracts with authors — including Mr. Styron — to release digital versions of previously published novels.

In its suit, Random House relied on wording in its contracts that granted it all rights to publish the works “in book form.” In its letter to agents on Friday, Random House invoked the same wording to defend its right to publish e-books of backlist titles.

In 2002, a federal judge in Manhattan denied Random House’s request for a preliminary injunction against RosettaBooks, ruling that “in book form” did not automatically include e-books. An appellate court similarly denied Random House’s request.

What I find most telling in this is the argument that authors and their estates are seeking alternatives to traditional publishers because those publishers are not offering a very competitive royalty rate on digital editions. After all, they argue, digital works costs less to produce and distribute — so publishers, who do less work, deserve a smaller slice of the pie.

Obviously traditional publishers do not like this, since it cuts into their potential profits — and backlist titles account for a significant amount of steady income for publishers.

Still, if the market can support paying authors more — isn’t that the “natural” path the book industry will take in the future? The Web certainly can support non-traditional publishing avenues, and while these leave off many of the benefits publishers provide (marketing and editing, especially), why couldn’t electronic editions find a different way to market? (This is especially true when the editing has already been paid for through earlier, hard-copy sales. And are publishers really pushing backlist publications enough to justify their payout?)

Can traditional publishers fend off this move through litigation and forceful contract negotiations? Or will we see increasing alternatives to traditional publishers in the e-book realm?

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