More for Blue Tyson, this time from the PoV of an author or his/her agent.
AgentY has sold his client's novel
BigBestseller to two different publishers. PublisherX has American rights; PublisherZ has Commonwealth rights. (Note that this may mean that both the PublisherX and PublisherZ edition are available in Canada. Or maybe only one edition. Or maybe
neither edition! Industry practice differs -- some attach Canada to US rights; some to Commonwealth rights. It depends which specific definitions are used by PublisherX and PublisherZ. You can bet that those definitions are spelled out in the contracts, though.)
PublisherX decides that they want to offer
BigBestseller as an eBook. If they're lucky, the existing contract already spells out all the details. If not, they have to negotiate a deal with AgentY. Lets assume, for ease of discussion, that the existing contract grants electronic rights for exactly the same territories as the dead-tree rights. Further, we'll assume that both PublisherX is unusually clue-full and so desire to offer the ebook worldwide. In fact, we're going to assume that PublisherX is the ultimate goodguys of the publishing world -- even Baen can only worship the ground on which PublisherX walks! (OK -- you can stop laughing hysterically...)
Now, PublisherX produces an eBook edition of
BigBestseller. They do a great job: all the formats look great; there aren't any typos or scanos; it's available in every format under the sun with no DRM. But their existing contract says that they have American rights (we'll assume that includes Canada). So, they put the book up with geographic restrictions and go have a nice heart-to-heart talk with AgentY, asking for world-wide electronic rights.
What can AgentY say to them?
- Sure! That'll cost you <some-price-or-other>. Go right ahead.
- Sorry, I sold Commonwealth rights to PublisherZ. But you can still purchase the rights for the rest of the world...
- Sorry. PublisherZ owns the Commonwealth rights, so you can't have them. Sucks to be you.
- We have a problem here -- PublisherZ already owns Commonwealth rights. If you want world-wide rights you'll have to reach a 3-way agreement with both us (agent and writer) and PublisherZ.
I'll skip the detailed pro/con write up, and simply note that option 1 leads to lawsuits flying around between PublisherX, AgentY, and PublisherZ in whatever permutations and combinations are necessary. And they're probably international in nature, filed in multiple venues in different countries with different laws and legal systems...
So option 1 is probably right out.
Options 2 and 3 are reasonable approaches for the agent to take...
but they lead directly to the geographic restrictions that none of us like.
Option 4 is probably most beneficial to the eBook buying public. But providing benefit to that public is not PublisherX's purpose in life -- they exist to make money by selling a reasonable product at a good-enough price. They'll probably only pursue option 4 if
BigBestseller is really
really important to their bottom line.
The big point, however, is that AgentY lacks the ability to sell PublisherX a bundle of rights that he's previously sold to PublisherZ! Unless, of course, the rights purchased by PublisherZ were non-exclusive.
So even if the publisher is the best-possible corporate citizen, we still have problems getting eBooks on the market with world-wide sales rights!
Xenophon