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Essentially, D Publishing still have the right to change the fee structure and (almost all of) the terms of the contract at any time, and the Author still has no recourse to terminate the contract.

Positives

To first look at the positives, D Publishing have amended the contract to properly reflect what they said were their intentions in the first place, and so the Author clearly now has the right to distribute their Work in channels not being exploited by D Publishing.

The Author has the option to nominate whether they want to (a) use D Publishing to publish in Core Distribution Channels only (ie. Dymocks stores, Dymocks online and Google ebooks), or (b) allow D Publishing to control Secondary Distribution Channels and subsidiary rights as well.

At present D Publishing have not nominated any Secondary Distribution Channels that they intend to exploit, but I understand this is intended to cover other e-retailers such as Amazon, or agreements with other Australian bookshops.  When they do commence selling in these areas, Authors that have chosen this aspect of the service may benefit from the superior clout of D Publishing, but are also restricted from exploiting this area themselves.  Although still subject to change completely at D Publishing’s discretion, the Rate Card currently sets out that D Publishing will retain 20% commission from exploitation of Secondary Distribution Channels.

D Publishing have also limited the Subsidiary rights they may hold to non-exclusive i) anthology & quotation, ii) extracts, and iii) condensations, with the license and fee split subject to the Author’s consent.  This is a big improvement from the previous position where D Publishing could claim exclusivity over all subsidiary rights and unilaterally decide their percentage of income.

In an important allowance, D Publishing must obtain the Author’s consent before adding any new channel to the Core or Nominated Secondary channels.

Negatives

Unfortunately, despite the improvements with clarity and transparency, the D Publishing contract still does not allow the Author to reasonably terminate the contract. In a small concession, the term of the contract is now ten years, with automatic ten year renewals if the Author fails to nominate otherwise.  Although D Publishing have the right to terminate the contract upon 30 days notice at their convenience, this right has not been extended to the Author.  Even goliath Amazon allows Authors to immediately terminate their distribution, subject to delays for removing digital copies and selling through of existing stock.

Standard commercial publishing contracts (with publishers who actually invest their own resources into a Work) allow for reversion of rights when a Work is out of print or no longer selling.  Self publishing or vanity press contracts allow for termination at the Author’s discretion. The D Publishing contract includes neither of these options, and the Author may remain trapped into the arrangement with D Publishing, unless D Publishing manage to breach their nebulous obligations or go into liquidation.

To further illustrate how unreasonable it is for an Author not to be able to walk away from the contract, in clause 21, D Publishing still reserves the right to change the terms of the contract or any of the fees payable to the Author, at their complete discretion. (Although Note 15 indicates commercial terms cannot be changed, clause 21.1 says otherwise.) Rather than drafting reasonable provisions in the first instance, D Publishing advise that the Author should trust in consumer protection legislation, potentially forcing Authors into complicated legal arguments.

Absurdly clause 21 includes the line, “The Author is deemed to accept changes to this Agreement by continuing to use D Publishing’s publishing services” while the contract still does not allow the Author any right to terminate.

Additional concerns with the contract include:

1. The Author is not able to license any part of the Work to another publisher, whether or not this infringes the license with D Publishing (clause 3.4).
2. D Publishing has the right to make unlimited chapters available for free (clause 9.2).
3. If D Publishing decide a legal review is necessary, the cost of this legal review is to be paid by Author, who has no option to refuse or terminate (clause 10).
4. The warranties and indemnities (clause 11) are still very broad and onerous.  This is not unusual for a self publishing contract, but the Author should be aware of the risks involved.
5. There is the implication that the Author can only take legal action against copyright infringement if D Publishing has declined to do so (clause 13).
6. Under the available version of the contract, Authors are still not allowed to use an ABN, although there is at least now an acknowledgment that an ABN compatible contract can be requested (clause 18).

Despite the improvements with this version of the D Publishing agreement, I would have serious reservations about any Author signing the contract.  The complete lack of adequate termination provisions leaves the Author with no ability to walk away in the face of inaction, incompetence or shrinking returns.  D Publishing’s ability to amend the contract whenever they choose and the contract’s generally one sided nature could be grudgingly acceptable if the Author had the right to abandon the arrangement.

In any event, the D Publishing contract really is as terrible as some of the online commentary suggests.  There seems to be a substantial disconnect between their friendly and reasonably FAQs and the actual wording of the publishing contract.  Unless the contract is amended to better reflect the stated aims, I would be unlikely to recommend any author sign the publishing aspect of the deal.

It is important to note that the “Produce My Book” function and “Print My Book” function do not lock the author into any unfair terms, although the pricing model is quite expensive when compared to similar services.

The absolute howlingly awful points in the D Publishing fine print, are that D Publishing purports to give itself the right to 1. amend the terms and conditions (including the royalties) at any time, 2. Include no allowance for the author to terminate the contract, and 3. D Publishing take an exclusive worldwide license for all languages, with no apparent interest in exploiting outside Australia, but preventing the Author exploiting these rights themselves.

Unlike commercial publishing contracts and common vanity press contracts, the D Publishing contract includes:

1. That the contract’s terms (including pricing) may be amended by D Publishing at any time, and the Author has no ability to agree or terminate the agreement (clause 1.4). [Helpfully, the contract says the Author is deemed to accept changes by continued use of the publishing services, but does not give the Author any way to stop using the publishing services].
2. D Publishing take all subsidiary rights, including world distribution rights, translation, and adaptation (which may include film, television and stage dramatic adaptation) without any obligation to use these rights, but preventing the Author doing so (clause 3.1).
3. There is a confused definition as to what is D Publishing’s exclusive distribution area, and I was unable to find a list of “Nominated Secondary Distribution Channels”.  In any event, D Publishing appear 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, eg. Indie Booksellers, or any ebook retailer that is not on the agency model (incl Amazon) (clause 3.4).
4. D Publishing have right to set whatever subsidiary rights split they want with the author. At present, “not less than 20%” could still mean 100% to D Publishing (clause 5.4).
5. There is no provision for the Author to terminate the contract, unless D Publishing are in breach of a term or become insolvent.  This means D Publishing have the right to arbitrarily change the terms and the author has no right to leave, or D Publishing can hold the rights forever (without ever having printed copies or promoted sales) with no ability for rights to revert to the author. (clause 14).
6. Ridiculously, the Author is not allowed to use an ABN. (clause 17.3). This potentially excludes professional authors, or authors who hope one day to become professional.

While there are other concerns, some of these mirror the standard clauses found with either commercial publishers or vanity press.  For example, some people have raised concerns about the Author being responsible for returns, while this is generally deemed to be an acceptable risk in exchange for the Author retaining additional control. (Although in this case the Author has no control, but all of the risk).  The Warranties clause is onerous, but then, it usually is, and it is standard for film tie-in rights to remain with the print publisher, as this is not a new right but essentially a reprint.

The pricing structure is a concern, and although not ridiculously bad, it is certainly not providing a revolutionary share of income to the Author. On my (very rough) calculations, the Author would receive approximately the same return as from a standard commercial deal, but with much more of the risk, and no professional editing, marketing support or distribution.

D Publishing have indicated that they are considering the criticisms of their agreement, and intend to release a new version of the contract in the new year. It will be interesting to see what they come up with.