The other day I was talking (mostly listening) to someone who works in trade publishing. That is the kind of publishing in which books are ‘sold’ for advances of £25K, or maybe £250K, or very occasionally more than a million smackeroos. This friend/acquaintance was explaining that the house she works for controls very few of the electronic/digital rights in the books they publish and she was frustrated that agents seem highly reluctant to grant any rights, or even to experiment with digital propositions.
This got me to thinking. What is the point of an agent who does not do deals? We do not hear much about agents doing digital deals. Are they just sitting on their authors’ rights and not exploiting them at all? Or are there soon going to be a rash of direct deals by agents with the likes of Amazon, Sony, Apple, Plastic Logic, Google etc? Perhaps there will be some deals: a couple of months ago Amazon flew a dozen top literary agents to Seattle for frank discussions. A few days ago Amazon announced that they had done an exclusive deal with Paul Coelho, exclusive for all his e-books in Portuguese. I wonder how much Amazon had to guarantee or pay as an advance for the exclusive rights? But all the e-books rights for Portuguese Paul Coelho, (why only Portuguese?), does not sound like such a big deal (oh yes, I know he is Brazilian, so it is a fairly big deal).
I suspect that exclusivity is the key issue here. Agents are used to handling and dealing in exclusive rights, and they are working with the hypothesis that digital rights are going to be like the exclusive rights that they have learned to carve out of the traditional book-publishing contract. Identify and separate the rights and sell each of them for as much as possible to one counter-party. But are digital rights like this? Does exclusivity really cut it in the innovative market for digital books? It has always seemed to me that copyright owners would be better off, and publishers would also be in a stronger position, if digital deals were almost always non-exclusive. Why do an exclusive eBooks deal with one supplier if there are 15 different players in the market, each with their own ‘installed base’? Why do a five year exclusive with Amazon if the market for digital is going to end up with Apple, or Google or someone else?
If you look at the couple of dozen eBook reading platforms that were announced, re-announced, released or previewed at last week’s CES (Consumer Electronics Show), it would appear to be quite possible that the market for digital rights is going to become extremely diverse and based on many different types of non-exclusive exploitation. Are agents capable of handling this kind of fast moving market? Is your typical literary agent capable of identifying and negotiating deals with dozens or scores of technology partners? How many literary agents were at CES in Las Vegas last week? Not too many, and few literary agents are comfortable in evaluating technology propositions.
Perhaps agents should get used to the idea of granting all digital rights to the book publishers they deal with on a non-exclusive basis, retaining the right to do non-exclusive deals themselves in certain circumstances. That way publishers and agents will all be working for the trade authors they represent. Just at the moment, it appears that a degree of paralysis and ignorance is ensuring that as few deals as possible are taking place. We are seeing the emergence of a new class of ‘neglected exploitation’ rights, somewhat analogous to the ‘orphan copyrights’ which lie at the core of the Google Books Search Settlement.