Electronic Publishing: Fiction and Fact

By now, every freelance magazine and newspaper writer has seen the new breed of super-dense, multipage contract being offered for even simple articles. Most independent writers have learned that it's worth paying attention to what even your favorite publisher asks you to sign.

Rights clauses--in particular, those pertaining to electronic rights--cause the most consternation. Especially when the publisher wants e-rights for free, or bundled with the right of first publication.

When you do scrutinize the boilerplate--be it from Esquire, the New Yorker, or Dental Floss Monthly--you may be moved to call your editor, to push for changes in the demand for "the non-exclusive right to exercise, by itself or through third parties, the rights granted herein in any form in which the Work may be published, reproduced, distributed, performed, displayed or transmitted (including, but not limited to, electronic and optical versions and in any other media now existing or hereafter developed) in whole or in part, whether or not combined with works of others, in perpetuity throughout the universe...."

And when the call finally gets through, you find an editor who has been primed to persuade by telling you a few things about electronic publishing. The problem is, much of what the editor says is wrong.

Here are the Most Repeated Cyberfables, each accompanied by what you should know to set them straight.

"Databases like Lexis-Nexis are just another way of distributing our magazine. You wouldn't expect more money if we signed up 1,000 more newsstands, would you?"
A database is NOT simply another means of distributing a magazine, because a database doesn't distribute magazines at all; it distributes individual articles. Online services collect a per-article fee from database users and pass a piece back to the publisher. It's as if a reader could go to a newsstand, slice your article out of a magazine and pay for the clipping alone. It is, in effect, an electronic delivery system for a reprint service.

"We don't `cherry-pick.' We use the article only as part of the whole issue in which it appears. It's simple archiving."
In a typical text-only database, there are no graphics and no ads, and frequently the database is missing some editorial matter, such as letters to the editor, short items, and articles by authors who have insisted that their work not be included. Hardly "the whole issue."

"This is just like microfilm."
Microfilm, which replaced bound volumes, is a form of magazine archive: The film contains the whole issue as an issue; once it's sold, no more money changes hands. But an electronic database, online or CD-ROM, is an archive of articles, not of issues of magazines. The publisher's copyright covers the compilation the way articles, graphics, and ads are strung together--but not the individual constituent parts. (Just as a writer's copyright in an article is for the stringing together of words; the writer doesn't own the individual words.) In the case of online databases, the reader pays the online service per hit, the database producer takes a cut, and the publisher gets a royalty. The only party in the chain who doesn't keep making money is the author--unless the publisher's contract calls for sharing the revenue.

"But no publisher is making a dime at this."
Wrong. With databases, publishers profit from the first sale on, because there are no startup costs; they sign a deal and collect royalties. Some heavily researched publications, like the New York Times, already make millions a year from electronic products. Others make peanuts. But whatever they earn from these databases is pure profit. On the other hand, online editions of a magazine, including separate sites on the World Wide Web, may have high startup costs and bring little initial income (although major advertisers are starting to sign up for some prominent magazines' sites). But while bottom line is what it's all about, no publisher expects profits from Day One in a new print venture. Nor does any real publisher expect freebies when starting a print venture. Electronic publishers pay everyone from their computer programmers to the electric company. Why should they get content for free?

"We don't charge download fees on our Web site. If we start charging, then we'll pay authors."
Download fees are just one of several ways online publishers profit. They sell ads, products and services, and mailing lists. They gain increased paper subscriptions and general promotion of the magazine or newspaper. In the case of commercial services, like America Online, they may earn finders' fees for bringing new subscribers to the service. Some of the most profitable publications are controlled-circulation giveaways with heavy advertising; would you hand them free articles because they don't charge for subscriptions?

"We don't know which articles are accessed. It would be too expensive to keep track."
Untrue. Per-article tracking is not only doable but common.

"It would be too expensive to write a lot of small royalty checks."
It might have been, but writers and agents have joined in the new Authors Registry, which has already begun to make things easier for publishers and database producers by conglomerating those small royalty checks for authors. Never accept the attitude that "the bookkeeping is difficult, so we'll keep all the money."

"The exposure will be good for you. It'll get your name around. It'll sell books."
By that reasoning, you shouldn't charge for print publication either, and you should give away first serial rights to your books. Even if it seems that an online appearance can help a new book with extra exposure, will it make sense in a couple of years, when the book is out of print? The chapter excerpted in a magazine may continue to earn royalties for the magazine publisher while doing nothing for you.

"We can't delete a single article."
Publishers control their own Web sites, and standard agreements with database producers allow for removal of any material as requested by the publisher, before compilation or after the fact. If a publisher won't pay, an individual piece can be left out.

"If you make us delete this article, you'll be interfering with the flow of information, research, scholarship, the future of the Western world...."
In other words, when it comes to aiding research, publishers should be allowed to profit but authors should make a donation?

"We ask for only nonexclusive e-rights; you can resell the work yourself any way you want."
Do you want to compete with Conde Nast or Hearst in marketing your work? And what happens when a potential puchaser asks for, say, exclusivity in a particular region and you have to say no, because the original publisher may be selling to the competition? But even more basic is this question: Should the publisher be able to make continuing use of your property and keep all the proceeds?

"The business is new. Let it shake down a few years, then renegotiate."
Ever try to push the toothpaste back into the tube? Some publishers are trying to establish an industry standard in which all e-rights--and, while they're at it, other subsidiary rights--would come with first publication right. Fortunately, others see things differently. We need to convert the holdouts now, not do it their way and hope for a better deal next year.

"All the other writers are signing."
Oldest line in the book of Publisher-Speak, and rarely true.

Our lawyer won't allow any changes."
Best response from a writer: "Neither will mine."

[The American Society of Journalists and Authors is the national organization of leading freelance writers. The Society's Contracts Committee provides this information to members and nonmembers alike, in the interest of a better-informed community of freelance writers. ASJA, 1501 Broadway, New York, NY 10036, tel (212) 997-0947, fax (212) 768-7414, e-mail 75227.1650@compuserve.com]