Tuesday, 13 December 2011
Dymocks responds to criticism of D Publishing contract

Dymocks' new publishing arm D Publishing has amended aspects of its author contract in response to criticism of the service.

Dymocks general manger of ecommerce Michael Allara told the Weekly Book Newsletter D Publishing, which officially launched last week, was 'aware of some of the concerns raised'. 'We've sought to liaise directly with the individuals who have raised and promoted those concerns to better understand them. It's in our interests to make sure the Publishing Agreement can be placed in the correct context and interpreted as it is intended, so we take the feedback of authors very seriously.'

'This process has helped us understand how technical legal contracts can be interpreted out of context,' said Allara. 'We made changes to the Agreement this week to ensure it is clearer for authors to understand the nature of their relationship with D Publishing; and reassure authors that they remain the driving force behind their work.'

Publishing contract expert Alex Adsett, who assessed the D Publishing contract after the changes were made, told the Weekly Book Newsletter she thought it was 'as terrible as some of the online commentary suggests'.

'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,' she said. However, Adsett pointed out that the production and printing options provided by D Publishing ('produce my book' and 'print my book') 'do not lock the author into any unfair terms'. And Allara pointed out that the use of these services 'do not require our Publishing Agreement'.

'Any author who creates a book using D Publishing is free to take their work to another publisher if they choose, or manage all distribution themselves,' said Allara. 'In some instances, D Publishing has been viewed as a distribution channel, rather than a publishing partner. We do not currently offer distribution-only options for works that have already been created and published elsewhere.'

Addressing the aspects of the publishing contract she found most concerning, Adsett was particularly critical of points she said gave D Publishing 'the right to amend the terms and conditions (including the royalties) at any time'. 'There is no ability for the author to terminate the contract,' she added.

However, Allara denied this was the case. 'This is incorrect,' he said. 'The law strictly prohibits any organisation from making unilateral, wholesale changes to the terms of any contract or agreement.' Allara added that 'we do, in our Agreement, reserve the right to make amendments where more services are added, or where clarification is needed'.

'Regarding termination, either party is able to terminate the contract if the other has breached it in any way,' he said.

Adsett was also critical of the approach to rights. 'D Publishing have the right to set whatever subsidiary rights split they want with the author,' she said.  'At present, "not less than twenty percent" could still mean one hundred percent to D Publishing.' With regard to world rights Adsett said 'D Publishing take an exclusive worldwide license for all languages, but with no apparent interest in exploiting outside Australia, while also preventing the Author exploiting these rights themselves.'

Responding to this criticism, Allara said it was D Publishing's intention 'especially considering the range of international ecommerce and digital options, to be able to represent the work that is published with us across territories'.

'We understand that some authors will be keen to proactively pursue specific opportunities in some territories themselves, and we ask that they make us aware of these so we better understand where a work is already available or subsidiary rights already exercised,' he said. 'Our intention is to enable motivated authors to be able to pursue specific opportunities directly if they choose.'

Adsett said the contract contained a 'confused definition as to what is D Publishing's exclusive distribution area' and added that D Publishing appears 'able to nominate anything as exclusive to them (without actually doing anything with the channel) and the contract prevents the author granting any third party the right to distribute the Work', for example 'indie booksellers, or any ebook retailer that is not on the agency model, including Amazon'.

Finally, Adsett was critical of aspects of the contract relating to an author holding an Australian Business Number (ABN), which she said 'may have serious tax implications'.

Allara said that, under the contract, 'an author is able to use, or hold, an ABN. If an author holds an ABN for their business, but seeks to publish books with D Publishing on the side, there is absolutely no restriction on this.' However, 'if an author is seeking to publish their books under their ABN, they will need to get in touch with us directly so we can provide them with an amended Agreement'.

Adsett said the aspects of the contract she was most concerned about were not replicated in commercial publishing contracts or in 'common vanity press contracts'. 'The question of returns is similar to other vanity press contracts,' she says, 'although asking the Author to pay for the freight on returns is new'. 'The Warranties are always onerous, but in this case made worse because the Author has to warrant not to breach the contract, when the contract is subject to change at D Publishing's whim,' said Adsett.

Allara said that it was important to note that the D Publishing service had been created 'to be suitable for a very broad range of Australian authors'. 'No author who uses our production and printing facilities is under any obligation to publish with us--they can retain their work for private use, or take their work to other publishers and distributors directly if they choose,' he said.

'We ensure that an author is still able to proactively pursue any distribution channels and opportunities, physical and digital, that they believe are right for their work. The author, not D Publishing, directly manages the pricing and printing of their works--D Publishing is unable to change an author's price or force them to print books they do not want to print. Authors are also able to determine where their books are distributed, either by D Publishing or themselves. We do not prevent an author from distributing their works directly through the channels that are right for them.'

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