I remember the meeting so well.  I had gone up to Edinburgh to talk to the contracts manager, a courteous but dour Scot who had served Thomas Nelson and Sons Ltd loyally after joining the company from school.  I was not only an employee, and a very junior one, but I was also an author (and a fairly poor one).  In both roles I wanted guidance on the new form of the author’s contract.  For example, what did ” publication in whole or in part in any format currently available or yet to be invented” mean?  What it says, said the Guardian of the Legal Rites: we act for you in any future context and all rights which will ever be available will be administered by us.  And will be pretty worthless too, his tone seemed to convey, and I thought little more of it until years later an author/lawyer friend remarked that publishers really should remove the unenforceable from their contracts and simplify them to express only the deal that could be made in the here and now.  For example, he said, all that stuff about claiming to manage distribution and rights in yet to be invented forms – it will never stand up in court.

All of which comes to mind as Mr Stephen  Covey seeks to transfer his eBook rights from Simon and Schuster to Amazon, and Random House announces that its contracts are just like those Nelson antiques of the early 1960s, in that they do cover any technology, including everything not invented at the point of signature and everything still not invented now.  Press reports that the Brits are a bit less confident that the RH USA argument will work are common on this side of the Atlantic, while in the US itself it seems clear that the Random House position of rights omnipotence will not survive a vigorous challenge , and maybe Covey himself has done enough to breach the convention.

So what is this fuss about?  And why try to bend the law into shape to defend the declining powers of publishers?  And those powers are in decline, or they would not need defending in this way.  If Random House and Simon and Schuster created the whizziest and most innovative eBook value add environments, and marketed them with an imagination and panache that compelled distributors to stock them, such that authors told their agents they would take 0.5% less just to be published in that way, then this brouhaha would never have taken place.  Truth to tell, these dogs in this manger are the very people who have resisted the onset of the digital world for half a generation, and are now feeling imperilled and are striking out to defend their traditional position.  But they do not grasp the basic concept of a digitally networked world: to succeed, you must understand users intimately, and design levels of value and enjoyment into your services which take them well beyond the simple reproduction of text in a different format.  If you cannot do that then do not bother to compete – just make way for those who can.

Mr Covey thinks that Amazon can, and will, do a better job than Simon and Schuster.  He may be wrong: this might just be a big distributor play and not result in a better service.  But it is surely his call.  I worked with a man once who was going to put all the world’s knowledge onto a block of silicon no larger than a lump of sugar.  He failed, but the thing that kept us awake at night was certainly not the spectre of Random House showing up to claim the rights to their author content in this context.

What is it about the attitudes of consumer publishing senior management which, despite the best efforts of their own often excellent but under-resourced  digital publishers, feels so much like the French aristocracy in 1789?

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