Cali Bush ©2010 OReilly Media, Inc. Ebook Contracts

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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

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

The set of works that the distributor is authorized to sell Usually listed on an exhibit

Copy/Ebook

Whats 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 Publishers written permission.

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

Technology used to impose limitations on the usage of digital content and/or devices.

Metadata

Product information Conforms to ONIX 2.1 standard

Territory

Set of countries in which a party has the right to promote/sell/distribute the ebook

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

Size it up: 5 key elements #1: Available Titles Some or all?

Size it up: 5 key elements #1: Available Titles Some or all? Publishers obligation to make future works available?

EXHIBIT A Available Titles Publishers 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? Publishers obligation to make future works available? Distributors 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: Whats 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?

Authors Rights Publishers Rights Distributors Rights Distributors Rights 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

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

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 Publishers 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 Distributors 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 Distributors 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