Cali Bush ©2010 OReilly Media, Inc. Ebook Contracts.

Cali Bush

©2010 O’Reilly Media, Inc.

Ebook Contracts

NOT

Ebook contracts

Part I: The basics -- concepts and vocabulary

Ebook contracts


Part II: 5 key elements

Ebook contracts



Part III: Gimmes

Ebook contracts



Part III: Gimmes

Part IV: Gotchas

Ebook contracts



Part III: Gimmes

Part IV: Gotchas

Part V: Looking ahead

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





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


#1: Available Titles



Some or all?



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.



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.”


#2: Does the contract permit or require the use of DRM?


#2: Does the contract permit or require the use of DRM?

By either distributor or publisher?

What can we live with?


#3: Do we have the ability to withdraw Available Titles?


#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


#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


#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


Exclusivity?

Rights questions


Exclusivity?

Derivative works?

Rights questions


Exclusivity?

Derivative works?

Conflicts?

Rights questions


Exclusivity?

Derivative works?

Conflicts?

Format-specific?

Rights questions


Exclusivity?

Derivative works?

Conflicts?

Format-specific?

Who else is covered by the contract?

Rights questions


Exclusivity?

Derivative works?

Conflicts?

Format-specific?

Who else is covered by the contract?

Other commitments?

Gimmes

Gimmes

Security requirements

Gimmes


Preview access

Gimmes


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


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


Distributor sets the DLP if you fail to provide one

Gotchas



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




Distributor’s ability to update their documents (Operating Manual, Submission Guidelines, etc.)

Gotchas




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

Cali Bush ©2010 OReilly Media, Inc. Ebook Contracts.

Documents

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