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| The Society of Academic Authors monitors trends in authoring contracts. Please let us know your negotiation experience as an author so we may share useful information with other authors. Your anonymity is assured. Contact: Editor OUT-OF-PRINT SECTION Print-on-demand technology has come of age. The technology allows a digitally stored book to be produced one copy at a time in numerous formats, including custom pagination, adjusted indexing, a variety of bindings, and full art work. In late 2001 Harvard University Press brought 100 out-of-print titles out of the graveyard through a new print-on-demand arrangement with Acme Bookbinding of Boston, whose business hitherto had been mostly replicating damaged books for libraries. Harvard's plan was to use Acme's POD technology to print a few copies of front-list books whenever market demand exceeded expectations. But the technology had other possibilities, which bode threateningly for authors. In 2002 Prometheus adopted POD technology to keep out-of-print titles available inperpetuity. Other publishers were acquiring print-on-demand tecoloy or contracting fro POD services. By keeping a book in print forever and ever, at least technically, a publisher that fails to promote and market a book could use the out-of-print provision that appears in most book contracts to deny an author the opportunity to shift to a more active publisher. The advent of print-on-demand technology has rendered the traditional understanding of the term out of print obsolete. The term, which is standard in author-publisher book contracts, once meant that a book was no longer in inventory and, usually, that the publisher had no immediate plans to re-issue the book. Author-publisher contracts generally allowed an author to reclaim the rights to a book when it entered out-of-print status and to seek another publisher. But with POD, a book neednever go out of print, at least by the traditional definition of the term.. Here is boilerplate out-of-print language that appears in many McGraw-Hill contracts. It is typical: "The work shall be deemed "in print" if it is in stock or on sale in at least one (1) edition, Revision, or version of the publisher or its licensee, including an electronic version based any edition or revision of the work, or a part thereof, regardlesss of whether the author is receiving or entitled to receive a royalty in connection with the sale of licensing of such editon, Revision or version. If after publication of the Work under this Agreement, the Work is not in print for a period of eight months or more, then, and in such event, at the Author's express written request, the Publisher will assign to the Author, without warranty, in accordance with the provisions hereof, all rights transferred by the Author to the Publisher in this Agreement (not including rights to any material prepared by or obtained at the expense of the Publisher, which will remain the property of the Publisher. Upon the Publisher's signing and delivery to the Author of such assigment this Agreemnet will terminate in accordance with the provisions thereof."The language of the McGraw-Hill contract, which is typical, did not anticipate the possibility through print-on-demand technology that a publisher could be failing to promote a book and even not beselling any copies and yet claim foever that it's in print. A publisher could use the provision to deny an author the opportunity to seek another publisher or even to revise a work if there also is a non-compete clause in a contract, as there usually is. See Noncompete provision. Recommedation: Language that is fair to authors will provide that the rights to their works revert to the author when sales diminish to an agreed-upon level and an author-publisher agreement has not been entered for a revision. This language would preclude a publisher from holding an author and title hostage by claiming a book is in print when only one or two copies remain in the warehouse or is sitting digitally in a file for possible print-on-demand issuance at a rate of as few as a single copy at a time. In other words, if a publisher has allowed a book to reach a near-death status, the author should be able to proceed to salvage the work. Notification clause On another out-of-print issue, the boilerplate out-of-print provision laid out by publishers put the onus on authors to notify the publisher that a work is out of print and to ask for the rights back. But unless the publisher alerts the author that a book is out of print, the author cannot implement the provision in a timely manner. Publishers typically do not inform authors on press runs and inventories. Recommendation: So authors have the information to activate an out-of-print provision, publishers should inform authors on the inventory of the book available for shipping. This should be included in royalty statements, or no less than every six months.
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