Copyright

Kindling embers or scorching the earth? Amazon’s foray into crowd-assisted publishing [Part II]


In my previous post, I discussed the impact of two new services launched by Amazon – Write On and Scout – on the content market in general, and readers in particular. Here, I take a look at what these services mean for authors.

The Write On Terms of Use are fairly straightforward, and clearly states that users do not, by posting content on the platform, transfer the intellectual property in their works to Amazon. Instead, they are assumed to grant a license to the company for the use, display and distribution of the content to Amazon’s readers. Authors are also free to remove their work from the platform, but are given no assurances that copies of their work will get taken down from Amazon’s servers immediately. Authors are also expected to warrant that they own the intellectual property subsisting in the work they submit, and to indemnify Amazon against any plagiarism-related liability it suffers. Amazon makes no promise to register a copyright in the author’s name for the work submitted, but it is reasonable to assume that uploading a work on the platform would constitute a public record of the work, making copyright enforcement easier for the author.

Amazon to authors: “Take it or leave it”

Authors’ interaction with the Kindle Scout program, on the other hand, is based on the Kindle Press Submission and Publication Agreement. The agreement gives Amazon to evaluate the work for 45 days, 30 of which shall be open for voting (“nominations”) by users. Upon selection, the author gives over exclusive rights to Amazon to publish the work in digital and audio formats, in any language. The contract starts off for a period of five years, and auto-renews at the expiry of every five-year period. Amazon lists out a series of benefits for authors, including the fact that they retain print rights to the books, the ability to terminate the contract if revenue is sub-par, and a guaranteed advance.

Before examining the text of the contracts in detail, I present some preliminary observations on the relationship created by these contracts.

First, there is the very existence of a standard form contract as a basis for the author-publisher relationship. While it’s true that upcoming authors can’t be assumed to have much control under the traditional publication model, the fact remains that personal interaction with representatives of publishing houses leaves some room for negotiation between the parties, negotiation that is simply impossible in the “take it or leave it” setup offered by Amazon and similar services.

Getting entangled in copyright imbroglios

The problem with Terms of Use-based copyright licenses is that they offer little in the way of notice to the author that her content does not fully belong to her once she posts it on a website. Take, for example, the case of James Erwin, who wrote a series of reddit comments titled ‘Rome Sweet Rome’, and sold movie rights to the story to Warner Bros. Due to the nature of reddit’s user agreement, Erwin had inadvertently granted the website a non-exclusive license to his copyright in the story that reddit could then sub-license to rival movie studios, potentially undercutting Erwin’s agreement with Warner Bros. The fact that reddit never exercised these rights is small consolation – the fact is that such standard form contracts fundamentally alter the manner in which parties, especially on the vulnerable end of the contract, fail to appreciate the magnitude of the rights they transfer.

Jane Ginsburg charts out the history of copyright law, noting that protections and rights have increasingly been shifting from exploiters of content (publishers) to creators of content (authors). She points out that authors lack bargaining power against exploiters. Tying in with my first observation, this lack of bargaining power has been accentuated by the absence of avenues for negotiation. Further, authors no longer retain their rights in entirety at any point in today’s publishing ecosystem. Almost as soon as they complete a work, they transfer their rights to the work to a publisher. This instant transfer of rights is essential to models such as Write On and Scout, since they rely on Amazon leveraging the works right from the manuscript stage.

What the agreements say

Getting down to the actual contract, some provisions of the agreements appear to be problematic, especially in the context of artists’ rights. Section 13 of the Scout agreement, for example, states that Amazon is under no obligation to continue exploiting the rights it has obtained from authors. In other words, it is perfectly possible for Amazon to cease publication after having bought the rights to the work. However, there appears to be very little potential for mischief here – since the Scout contract provides for reversion of rights (S. 6) at any time after two years of first publication if the net royalties payable for the preceding 12-month period were under $500. Thus, an author’s worst case scenario would still entail a reversion at the expiration of three years without publication.

Another problem arises with respect to the publication of ebooks outside the Kindle hardware ecosystem. Assuming that Amazon manufactured and distributed books in formats that could only be read by the Kindle, what relief would the author have in order to ensure a wider, non-Kindle audience for his work?

On balance, however, it appears that at least for some authors, Amazon’s Scout and Write On services could prove to be a boon. But as I’ve demonstrated over these posts, it appears that this boon could come at the cost of consumer interests, and some of the rights of the authors themselves. With alternatives such as Wattpad providing similar benefits to upcoming authors (vetting by advance readers, rising visibility, etc.), it makes little sense for authors to embrace these services in the manner that Amazon would like them to.

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Balaji Subramanian

Balaji Subramanian

Balaji is a third year student at NALSAR, Hyderabad. He is currently an editor of the Indian Journal of Intellectual Property Law. He is fascinated by technology law and IP law, and is an active member of NALSAR's Technology Law Forum. When he isn't doing law school things, he wanders the country looking for quizzes to participate in. He can be emailed at [email protected]

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