Monday, February 22, 2010

Stumbling Backwards Into the Future: ebooks and Territorial Copyright

The publishing industry is at a very early stage in working out the best way to proceed with ebooks and territoriality.

Right now book lovers around the world are being utterly antagonised. This is happening for the following reasons:

- Territorial rights are being bought for the 'Work', which is inclusive of all formats. This is right and proper and really shouldn't operate in any other way. Calls by literary agents and author associations for authors to withhold e-rights from traditional print publishers are wrong-headed and, like most things that essentially don't make sense in the real world, will quickly come to nothing.

- But publishers are falling into the mistake of running ebooks along the same familiar tracks as print books when it comes to exploiting these geographic rights. Whereas print books are invariably re-issued in the specific territorial edition, ebooks do not need, and shouldn't therefore be press-ganged into, the same analogue dynamic.   

- There is no need at all to 'issue' the ebook into a different territorial edition. All that needs to happen is that the revenue collected for sales into the appropriate territory OF THE ORIGINAL EBOOK needs to be now remitted BY THE ORIGINAL EBOOK PUBLISHER to the publisher who has bought the rights to that territory. There need be no cessation in supply. Amazon, Apple, B&N, Google, whoever, can provide sales data by territory. Amazon does that now for print books.  

- What is currently happening is quite absurd, utterly unnecessary and is alienating readers. Let's take a typical example: if a work, in simultaneous print and ebook editions, is first published in the US, then the ebook (barring any silly 'windowing' or withholding policy) is usually available globally, but only until that publisher or the author's agent sells Commonwealth rights. Then it suddenly, and infuriatingly, STOPS being available outside the US, and this state of affairs lasts for months and months while the Commonwealth publisher (my god how that term grates!) ambles up and publishes its own ebook edition.

- UK and Australian publishers have felt little urgency in releasing their ebook territorial versions, as the installed base of ebook readers has been, and still is, quite small. Why rush in and possibly undermine sales of the more expensive print book? Thankfully, over the next year or so we will see this dramatically change. The demand for the ebook will need to be satisfied.

- This is why Australian Kindle owners are so frustrated by not having available to them tens of thousands of ebook titles that are freely available to Americans. The same with Apple Apps. It is all so unnecessary. The mechanics of rights sales, production, versioning, etc, are not the problem. The barrier is conceptual.

- Which bring me to my final observation about how all this is playing out. It is extremely frustrating to me that e-wholesalers and e-retailers like Amazon, Apple, Kobo, etc are willingly partnering with publishers in this backwards stumble into the future. Unlike for printed books, these new world, glitzy digital entities are refusing to supply whole swathes of global consumers because of restrictive, geographic covenants they've entered into with publishers, that force them to honor territorial deals publishers do with each other. It's a clear breach of common and accepted retail practice. Don't get me wrong: publishers are right to do the deals. But retailers are wrong to withhold supply to their customers on the basis of a crass, geographic discrimination.

- It's even worse than allowing publishers to take away from you the power of pricing by forcing you onto an 'agency' model of supply (shame on you Amazon, for your degrading capitulation to Macmillan). That bad publishing strategy will soon come unstuck I'm sure. Give it a couple of years at the most. Publishers have no business dictating pricing to retailers. (It's quite illegal in Australia anyway, thank god!)

- The question for readers is: how long do we have to wait for publishers to focus primarily on the needs of consumers and work out a sensible path into the future, one free of awkward, analogue dead ends and blockages that have no place on the celesial highway? 

Tuesday, February 16, 2010

An Old Idea But Still a Bad One

This press release was issued yesterday by the Minister for Innovation, Industry, Science and Research, Senator Kim Carr.


The Rudd Labor Government is establishing a new Book Industry Strategy Group to help Australia’s $1.5 billion book industry meet the challenges of increased online book sales and grasp the opportunities presented by the emerging ebook market.

The strategy group will bring together representatives from across the industry to map out the way forward for this important sector. It will develop strategies to address the key issues of supply chain integration and developing viable business models for the digital age.

Announcing the strategy group at the Digital Revolution: Publishing in the 21st Century symposium in Melbourne today, Innovation Minister Senator Kim Carr said it will focus on collaboration, transformation and future sustainability.

“The written word may be almost as old as human civilisation itself but this doesn’t mean we can ignore the very real and very rapid advances being made in digital publishing technologies,” Senator Carr said.

“We are moving into an environment in which the printed book is just one platform among many.

“We have a proud and distinguished literary history in this country thanks to the work of generations of talented authors, publishers and local book manufacturers.

“Australia has the only dynamic and growing independent book selling sector in the English-speaking world.

“I want to keep it that way. We must be prepared to seize the opportunities the digital revolution is offering.

“I am giving this strategy group a very clear mandate – I don’t just want a report, I want a way forward.

“I want to see book printers, publishers, distributors and retailers together in one room collaborating with each other and taking responsibility for transforming their industry in a way that ensures its future sustainability.

“The group will be able to tap into our existing $50 million a year Enterprise Connect initiative and a broad range of other programs currently in place to assist business transformation.”

The Book Industry Strategy Group will operate according to precise terms of reference and is expected to report back within twelve months.

Having shamefully walked away late last year from the prime dynamic of industry change, progress and development - competition - the Rudd government now reverts to the oldest of bad ideas - 'industry policy', in order to offer some semblance of actual government engagement with the book industry.

Kim Carr, better known in economically liberal circles as Kim Il Carr, representing in government the remnants of Victoria's once thriving manufacturing base - unionised, organised, centralised - has long been a fevered supporter of the once fashionable but now widely discredited concept of Industry Policy, a complex framework of grants, subsidies, offsets, tax breaks, quotas, tariffs, incentives, marketing boards, mandates, etc, that were meant, when all boiled down, to provide a good level of protection to industries from the chill winds of global competition and technological disruption. Give them a helping hand, so to speak. Ensure, in today's parlance, their 'future sustainability'.  

Look at the press release, interesting on a number of levels. Firstly and superficially Minister, the book industry is $2.5 billion in size, not $1.5 billion.

Secondly, why aren't the nation's authors part of this collaborative 'all together in one room' process? All other players are there: printers, publishers, distributors and retailers. And come to think of it....why READERS?

Thirdly, Carr lauds the fact that 'Australia has the only dynamic and growing independent book selling sector in the English-speaking world', and he 'wants to keep it that way'. But he seems blithely unaware that, 'seizing the opportunities the digital revolution is offering' may very well mean a wholesale undermining of the retail bookseller. His protectionist instinct is flying in the face of reality. You can't skewer things so two opposing forces suddenly cease to oppose. The dynamics of the free market will work these things out, not noble sentiments or 'strategy groups' or any officially sanctioned 'collaborations'.

It's not hard to guess what this ominous, Roald Dahl-esque BISG will recommend. It will simply pool all the trade's current obsessions and delusions which have been articulated to the point of exquisite tedium over the last awful year. After a breathless appreciation of the government's wisdom in retaining the parallel importation restrictions, the central recommendation will undoubtedly be to impose the GST on Amazon. Then to empower the Australia Council with more money for literature and 'industry development'. Then all sorts of 'facilitation' stuff that bureaucrats love. All very deep.

Industry programs and proposals going back decades will be dusted off, given a fresh coat of paint and enthusiastically re-presented. To a government that staged a 2020 summit which elicited heaps of recommendations that have never since seen the light of day. (I wouldn't be at all surprised to see the printers re-propose the book bounty! This is Carr we're talking about...)

I'm too cynical, no doubt. But rest assured, I do know what I'm talking about.

Friday, February 5, 2010

Down Under and Anal

The Federal Court's decision that the flute riff in the classic Australian song Down Under breaches the copyright held by Larrikin Music in the iconic Australian folk song Kookaburra Sits in the Old Gumtree is quite simply appalling.

The judge found that a 'substantial part' of Kookaburra was swiped by Greg Ham for his solo, and that substantial part added up to two bars, yes, TWO BARS! Given that Kookaburra, in total, adds up to four bars, then 50% must be considered substantial.

Now no-one could object to that: 50% of anything is a substantial part.

The problem is this: when any piece of copyright content is short and brief it would be almost impossible to quote even the smallest part of it without running up against the concept of substantiality. And quoting and referencing prior works is what so much of creative output is all about. New works build on the rich legacy of others - the musical, literary, filmic, performance traditions in which they live and breathe. That tradition is enriched and extended by borrowing, tribute, echo, reflection, criticism, satire, etc.

Ham, a classically trained musician, wanted to introduce into Down Under some appropriate Australian references. Quoting two bars (remember, two bars) of a universally known and revered old Australian children's song, written in 1934, was reverential and enhanced the overall wittiness of the entire Down Under song. As well, the two bars were only a small part of the solo and an even smaller part of the song.   

The judge seems to me to have missed the logic of this. It would have been impossible for Ham to have quoted less than two bars (eg, one bar) and still achieve his valid purpose - the small and enriching quotation, that had to be recognisable. 

If referencing an insubstantial part therefore of such a brief piece of content is impossible, then surely the concept of substantiality in this context is bereft of meaning. 

The judge has delivered a decision based on an empty technicality. It also runs totally counter to the current musical culture of sampling and remixing, and for this reason alone will stoke the fires of disaffection that are bringing the whole notion of copyright into disrepute, particularly amongst the young.

What a lost opportunity. An opportunity to be wise.