With a new year upon us, my #PubLaw for Writers guest posts here at the RMFW blog will focus on helping authors understand and protect their legal rights. Today, we're kicking it off with a little more about ebook rights--what they are, and how they function in a publishing contract.
Ebook Rights are Normally Addressed in a Contract's "Grant of Rights" or "Primary Rights" Paragraph.
One of the first paragraphs in a publishing contract is normally titled "Grant of Rights" (or sometimes, "Primary Rights").
The Grant of Rights paragraph often mentions many different rights, all of which belong to the author as part of the copyright in the work. In the contract, the author grants the publisher a license (legally defined as a "right to use") the enumerated rights.
Normally, the "primary rights" include the rights to publish, distribute, and sell the work in print and ebook formats. Sometimes, the primary rights include a few other rights as well--and we'll look at them in the months to come. (Today, it's all ebook, all the time.)
Note: Ebook-only publishers shouldn't be asking for print rights too, but print publishers normally do request ebook rights.
The Contract Should Never Give the Publisher "Ownership" of Any Rights or Copyrights.
A license is not the same thing as "ownership"--the contract should never give the publisher ownership of the copyright, or any other ownership rights in the work.
Instead, the contract should give the publisher a license--normally "exclusive" with regard to print and ebooks--that lasts for the term of the contract (which may or may not be the same as the copyright term--more on that in a future post).
The New Frontier: Enhanced Ebook Rights.
Most authors know what an "ebook" is (if you don't...you may have been living in a cave for the past few decades). However, many authors don't know the difference between "ebook rights" and "enhanced ebook rights."
An "enhanced ebook" is an ebook containing not only the text of the work, but also various kinds of supplementary content designed to enhance the reader's experience. Examples of enhanced ebook content might include pop-up maps (such as maps that appear when you click a linked phrase or place name), musical scores or other "background sound effects" to accompany the reading, hyperlinks that open web-based content, and similar added features.
Enhanced ebooks are rare, but several startup companies now offer enhanced ebooks for sale, either as independent products or as an "enhanced overlay" for a publisher's existing ebook content.
Enhanced Ebooks in Publishing Contracts:
Although the standard ebook clause, which normally includes a grant of rights for the publisher to produce ebooks "in any method of ebook production now known or hereafter developed," many publishers are now including the words "enhanced ebooks" as another specific piece of the grant of rights (so the contract now reads: "ebooks and enhanced ebooks" rather than just "ebooks").
By granting enhanced ebook rights to the publisher, the author surrenders his or her right to: (a) determine whether or not an enhanced ebook is made during the term of the contract (the publisher, as the holder of the license, gets to make that call), (b) control the enhanced content, and (c) request a higher, or different, royalty rate on the enhanced ebooks--normally the standard ebook rate would apply.
While some publishers may not be willing to negotiate on enhanced ebooks, since this format might compete with the standard ebook, authors should be aware that this is actually a separate right from ebooks, and that it may be possible to negotiate the grant of enhanced ebook rights.
For example: sometimes the publisher will allow the author to keep enhanced ebooks altogether; if not, perhaps the author can negotiate approval rights over any enhanced ebook content, and possibly also a higher percentage of royalties on the enhanced version.
The Final Decision About Your Enhanced Ebook Rights Belongs To You.
The number of enhanced ebooks on the market now is fairly small--but the same was true of "regular" ebooks, back in the days when e-readers were new. Like any publishing right, only you--the author--can make the business decision whether or not to grant the right to a publisher, and there is no "right or wrong" answer--it depends on your personal business decisions and the other terms of the deal. However, before you sign a publishing contract, be sure you know where ebooks and enhanced ebooks fit in, that you understand the terms being offered, and that you're making the decision you believe is best for you and your work.
Have questions about this or other publishing contract terms? Pop into the comments and let me know!