It has been great to see so much discussion about the D Publishing contract recently, not because of the contract itself, but because as a Publishing Contract Consultant, it is heartening to see the rest of the publishing world care about contract fine print as much as I do. (It can be lonely being a specialised geek).
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:
- 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].
- 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).
- 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).
- 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).
- 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).
- 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.