Cali Bush ©2010 OReilly Media, Inc. Ebook Contracts.
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Cali Bush
©2010 O’Reilly Media, Inc.
Ebook Contracts
NOT
Ebook contracts
Part I: The basics -- concepts and vocabulary
Ebook contracts
Part I: The basics -- concepts and vocabulary
Part II: 5 key elements
Ebook contracts
Part I: The basics -- concepts and vocabulary
Part II: 5 key elements
Part III: Gimmes
Ebook contracts
Part I: The basics -- concepts and vocabulary
Part II: 5 key elements
Part III: Gimmes
Part IV: Gotchas
Ebook contracts
Part I: The basics -- concepts and vocabulary
Part II: 5 key elements
Part III: Gimmes
Part IV: Gotchas
Part V: Looking ahead
Ebook distribution contract concepts
Ebook distribution contract concepts
What the distributor is doing for you
Ebook distribution contract concepts
What the distributor is doing for you
What the distributor needs from you
Ebook distribution contract concepts
What the distributor is doing for you
What the distributor needs from you
Results of the relationship
Ebook distribution contract concepts
What the distributor is doing for you
What the distributor needs from you
Results of the relationship
What happens if something goes wrong
Ebook distribution contract concepts
What the distributor is doing for you
What the distributor needs from you
Results of the relationship
What happens if something goes wrong
Ending it
Vocabulary
Available Titles
Available Titles
The set of works that the distributor is authorized to sell
Usually listed on an exhibit
Copy/Ebook
Copy/Ebook
What’s being distributed under the contract
Format-specific?
“Distributor agrees that it will not convert any Digital Content delivered
under this Agreement into a different digital format (e.g., from a PDF to
another digital format) without Publisher’s written permission.”
Digital List Price/DLP
Digital List Price/DLP
Established by the publisher on a per-title basis
May be the basis for payment calculation
May be changed by publisher upon written notice
Digital Rights Management/DRM
Digital Rights Management/DRM
Technology used to impose limitations on the usage of digital content
and/or devices.
Metadata
Metadata
Product information
Conforms to ONIX 2.1 standard
Territory
Territory
Set of countries in which a party has the right to promote/sell/distribute
the ebook
Refresh/resupply
Refresh/resupply
Continued ability to make a Copy available to a customer who
previously purchased it, with no further payment being due
Size it up: 5 key elements
Size it up: 5 key elements
#1: Available Titles
Size it up: 5 key elements
#1: Available Titles
Some or all?
Size it up: 5 key elements
#1: Available Titles
Some or all?
Publisher’s obligation to make future works available?
EXHIBIT A
Available Titles
Publisher’s entire inventory of digital or electronic works, including any
book, treatise, journal, periodical, monograph, literary or scholarly work,
public domain work, and other works, whether written or otherwise.
Size it up: 5 key elements
#1: Available Titles
Some or all?
Publisher’s obligation to make future works available?
Distributor’s obligation to distribute?
“Despite the rights granted above, you understand that we make no
promise that we will include in the Program any Books that you make
available to us; however, we agree that the criteria we apply in
determining the inclusion of your titles will be consistent with the
criteria we apply with respect to the content of other computer and
technology publishers.”
“If Publisher does not supply the Ebooks in one of the Formats specified
in the Publisher Interface Handbook, Distributor reserves the right not to
make those Ebooks available to its Channel Partners.”
Size it up: 5 key elements
#2: Does the contract permit or require the use of DRM?
Size it up: 5 key elements
#2: Does the contract permit or require the use of DRM?
By either distributor or publisher?
What can we live with?
Size it up: 5 key elements
#3: Do we have the ability to withdraw Available Titles?
Size it up: 5 key elements
#3: Do we have the ability to withdraw Available Titles?
We generally require that we have the ability to remove titles from any program upon reasonable notice
We sometimes end up w/a 2-tier structure
Post-termination refresh/resupply issues
Size it up: 5 key elements
#4: What’s in it for us? Show me the money!
Understand carveouts.
Payment is only one upside.
We want access to online, real-time (or nearly real-time) sales data
Size it up: 5 key elements
#5: Rights: What rights are we granting, and why?
Rights questions
Consistent with author contract?
Author’s RightsAuthor’s Rights Publisher’s RightsPublisher’s Rights
Distributor’sRights
Distributor’sRights
Downstream rights
Rights questions
Consistent with author contract?
Exclusivity?
Rights questions
Consistent with author contract?
Exclusivity?
Derivative works?
Rights questions
Consistent with author contract?
Exclusivity?
Derivative works?
Conflicts?
Rights questions
Consistent with author contract?
Exclusivity?
Derivative works?
Conflicts?
Format-specific?
Rights questions
Consistent with author contract?
Exclusivity?
Derivative works?
Conflicts?
Format-specific?
Who else is covered by the contract?
Rights questions
Consistent with author contract?
Exclusivity?
Derivative works?
Conflicts?
Format-specific?
Who else is covered by the contract?
Other commitments?
Gimmes
Gimmes
Security requirements
Gimmes
Security requirements
Preview access
Gimmes
Security requirements
Preview access
Pricing & payment models
2 payment models
“Distributor will pay Publisher ___% of the Digital List Price for each
Copy sold by Distributor under this Agreement.”
“Distributor will pay Publisher __% of the Sales Price for each Copy sold
By Distributor under this Agreement. “Sales Price” means the gross
Amount paid by the Customer for the Copy, minus only the amount of
any sales, use, VAT or similar taxes included in price paid by the
Customer.”
2 payment models, continued
“Distributor will pay Publisher ___% of the Digital List Price for each
Copy sold by Distributor under this Agreement.”
“Distributor will pay Publisher __% of the Sales Price for each Copy sold
By Distributor under this Agreement. “Sales Price” means the gross
Amount paid by the Customer for the Copy, minus only the amount of
any sales, use, VAT or similar taxes included in price paid by the
Customer, provided however that regardless of the actual Sales Price, in
no event shall the amount payable to Publisher for any sales of any Copy
be less than __% of the Digital List Price.”
Gimmes
Security requirements
Preview access
Pricing & payment models
Duration of term/termination provisions
Gotchas
Gotchas
Mutual confidentiality
“Distributor agrees and acknowledges that all data regarding the
number of Copies distributed, and the corresponding revenue and
payments to Publisher shall be deemed to be Publisher’s
‘Confidential Information’ under this Agreement.”
Gotchas
Mutual confidentiality
Distributor sets the DLP if you fail to provide one
Gotchas
Mutual confidentiality
Distributor sets the DLP if you fail to provide one
Pricing restrictions that create an artificial correlation to an unrelated or tangentially related part of your business
Beware of contracts that
tether your ebook discount structure to your print book discount structure with that distributor
Beware of contracts that
tether your ebook discount structure to your print book discount structure with that distributor
place restrictions on your DLP
OK:
“The DLP shall not exceed the list price for the corresponding
physical book.”
NOT OK:
“The DLP shall not exceed the list price of the least expensive format in
which such Title is available.”
Gotchas
Mutual confidentiality
Distributor sets the DLP if you fail to provide one
Pricing restrictions that create an artificial correlation to an unrelated or tangentially related part of your business
Distributor’s ability to update their documents (Operating Manual, Submission Guidelines, etc.)
Gotchas
Mutual confidentiality
Distributor sets the DLP if you fail to provide one
Pricing restrictions that create an artificial correlation to an unrelated or tangentially related part of your business
Distributor’s ability to update its documents (Operating Manual, Submission Guidelines, etc.)
Colloquialisms
Do you know whether. . .
the ebook distributor is required to honor any availability dates that you provide?
the distributor has launched its service, and has it affirmatively committed to making your content available?
your content will render properly?
Looking ahead
3 Takeaways
Do your homework
3 Takeaways
Do your homework
Confirm accuracy of key contract terms
3 Takeaways
Do your homework
Confirm accuracy of key contract terms
Keep an eye upstream too
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