Autharium
Passive Guy received a warning about a new British site that makes it easy for indie authors to publish and distribute their work. The name of the site is Autharium.
The warning was about Autharium’s terms of service. Following are some excerpts from the Terms and Conditions:
1.1 By submitting your Work to Autharium and accepting these Terms & Conditions, you grant to Autharium the exclusive right and licence to produce, publish, promote, market and sell your Work in any Digital Form (as defined in paragraph 1.4 below) in all languages throughout the world for the entire legal term of copyright (and any and all extensions, renewals and revivals of the term of copyright).
1.2 You agree that Autharium shall also be entitled to license retailers, distributors, agents, licensees, sub-contractors and other third parties to exercise the rights you have granted to Autharium under this Agreement.
. . . .
13.1 You may remove your Work from sale on the Website and by all our retailers, distributors, agents and other third party sellers by emailing Autharium at support@autharium.com. Within 90 days of receiving your email, Autharium will remove your Work from sale on the Website and request all our retailers, distributors, agents and other third party sellers to remove your Work from sale. If you wish to re-enable Autharium and our retailers, distributors, agents and other third party sellers to sell your Work you can re-enable sales by emailing Autharium at support@autharium.com.
13.2 Please note that your removal of your Work from sale in accordance with paragraph 13.1 above will not terminate this Agreement nor cause the exclusive digital publishing rights that you have granted to Autharium pursuant to paragraph 1 above to revert to you. You maintain copyright of the Work at all times.
13.3 If you wish to sell your Work in any Digital Form through any other publisher, distributor or means then you will need to contact Autharium atsupport@autharium.com to agree transfer of the digital publishing rights to your Work.
Link to the rest at Autharium Publishing terms and Conditions for Authors and thanks to Catherine for the tip.
Yes, the excerpted language does mean what it says.
By distributing your book through Authariam, you are giving Authariam exclusive world-wide ebook rights to your book for the full term of the author’s copyright, which PG is informed is the author’s life plus 70 years under British copyright law. British law governs this contract.
You can remove your book from Authariam, but Authariam still owns world-wide rights.
To make certain there is no mistake, we have Paragraph 13.3 which explicitly says that if you decide you would rather distribute your ebook with Amazon under its KDP program or with Barnes & Noble under Pubit or if a big New York publisher offers you a seven-figure advance for your book, you will have to persuade Authariam to release its contract claim. Undoubtedly, this will require that the author pay Authariam some pounds sterling to gain the release.
PG would appreciate comments from those with knowledge of UK law as to the enforceability of contract provisions PG believes to be unconscionable in the context of an online click-contract (sometimes called “click-through agreements,” “click and accept” or “web-wrap” agreements.
To the best of PG’s knowledge, this is the first online distribution service that includes such nasty contractual traps for the unwary author. Unfortunately, he suspects it will not be the last.
, Amazon will pay Passive Guy a small affiliate commission on any of your purchases.
Holy Crap!
It’s becoming a minefield out there.
First Hydra and now this.
I don’t even want to click on their link, for fear that I might owe them something for doing so.
WELCOME!
By visiting the AUTHARIUM website, you’ve agreed to pay us £1,000.00
Hahahahahahahahahaha! Zingo!
+10, Donald!
Tell us again, Price Fix Six, about how evil Amazon is.
Wow. I really hope the U.K. has the ability to shut down crooks like this.
Under english law an exclusive license of copyright must be in writing under signature s90 Copyrights, Designs and Patents act 1988; this therefore, despite its terms, is not de jure enforceable as an exclusive license. A non-exclusive license may only be enforced under s101A of the act which requires again a written contract under signature.
Therefore, although I am not a lawyer, it is my view that this is not an enforceable contract.
Despite my view I would still not do business with this company.
In the US “written” and “signature” are often assumed by laypersons to mean hard-copies and “wet-ink” signatures. Much of the time, this is not actually the case. For instance, here’s how I sign patent applications:
/Marc Cabot/
I put that in a blank on a web-form on the PTO’s website, and I’ve signed a patent application. Done deal. (Except of course that I use my real name which is tied to my USPTO license.)
I have no idea how UK law approaches digital signatures but I would be really, REALLY wary of a cursory reading which indicates that “written” contracts and “signatures” are required and arriving at the conclusion that you can’t assign or exclusively license a copyrighted work electronically.
Digital signatures are of course enforceable under uk law, so in your example you would have a valid contract. Generally, to qualify as a signature you must write or type your name with the intent to be bound by the contract. That’s not present in this case. You can sign by a mark, which is present in this case, but the law presumes you are illiterate and requires that the contract should be witnessed and the contract read to you. Electronic signatures are also enforcable via a certificate scheme, which isn’t present in this case.
Welcome to the publishing future. Guard your rights because a lot of folks are after them.
A lot of the fiction sites have sneaky little clauses like this in their Terms of Service. They also look for authors who are posting their work and “invite” them to join their sites. I post on FictionPress (which has a perfectly acceptable TOS, in my opinion) and received private messages from ReadWave and NovelJoy.
ReadWave’s TOS says “you hereby grant to us and our successors an irrevocable and unconditional licence to post, modify (for the purposes of electronic conversion and encryption), display, reformat, distribute, copy and otherwise make available to the public the Content on the Website, within the limitations you set during the uploading or submission process, for the full period during which such rights subsist (including all renewals, revivals, reversions and extensions of the same) and thereafter to the fullest extent possible in perpetuity.” Irrevocable and forever. So unless you were smart enough (or able) to set a time limit of a few months during the upload process, they’ll be able to give your work away for free forever. Good luck making any money on it anywhere else when it’s freely distributed by them.
And NovelJoy — ah, looks like they’ve revised their TOS. But back in November when they invited me to join their site, their TOS took everything down to the derivative rights. If EL James had posted there, the movies rights to Fifty Shades would have belonged to them. I think my email to them said something along the lines of “you might not be evil, but you’re doing a good job of pretending to be.”
Thanks.
I post weekly on Tuesdayserial.com. I read their terms of service before starting – and don’t remember any problematic wording.
However, due to the latest, I will go re-read their ToS, and print them out, so I can see what I have agreed to, before I post anything with anyone any more.
From their FAQ page:
“Do you, Tuesday Serial, have any rights to our work? What if I sell the rights to my work down the road? Tuesday Serial does not have any rights whatsoever to your writing. We do not publish any fiction on our site; we only link to your work. The writers retain copyright to their material at all times. If writers subsequently sell the rights to their work and choose to remove their work from their website or blog, please let us know and we will happily remove the links from our “Graduates” or “Hall of Fame” pages.”
I also got an invitation from ReadWave, and after reading their TOS, got off their site fast.
I will add that it’s thanks to PV, it’s community, and the self pub community that I know what I look for now when reading TOS and publishing contracts.
Good grief! Thanks for the warning! I’m starting to feel the only safe thing to do is sell through my own website. Even then, I’ll have to keep an eye on the service provider.
“13.2 Please note that your removal of your Work from sale in accordance with paragraph 13.1 above will not terminate this Agreement nor cause the exclusive digital publishing rights that you have granted to Autharium pursuant to paragraph 1 above to revert to you. You maintain copyright of the Work at all times.”
How can they say “you maintain copyright of the work AT ALL TIMES” and at the same time you give them “exclusive rights” to ” ENTIRE legal term of copyright (and any and all extensions, renewals and revivals of the term of copyright).” (which as PG pointed out is life of author plus 70 years).
point 1
In other words:
1)we owe the copyright completely. (life pluse 70 years)
2)We are merely STATING the phrase “You maintain copyright of the Work at all times,” on this document but it is void of any content value (ie its just gibberish, or a marketing phrase not meant to be taken seriously in any legal way).
Am I correct in that? Is that what is going on here?
point 2
Also Question:
Can you have a contract that clearly contradicts itself like this and STILL apply whichever of the contradicting terms is favorable to the contract drafter (Autharium in this case) by default?
In general aren’t contracts that are this lopsided rarely enforceable in a legal context in most Common Law countries? (ie here in Canada I’m told they are not but you’ll probably have to go to court to fix it)
Am I getting the gist of it?
On the first point, copyright provides more than the ability to publish a piece of work, it also gives you the right to produce derivative works. So, not all rights are being licensed.
On the second point, Common Law jurisdictions generally don’t interfere with a business contract unless it is completely beyond the pale. They assume you know what you are doing. There is much more flexibility in consumer contracts.
Of course, statute law can override common law. And judges, when they get angry, can surprise anyone.
Thanks Thomas I understand. Regarding your response on the 1st point: makes sense. If they pointed out what you just said it would make it easier to see that you still have other rights (of course its still a terrible contract as I understand it). So you could say create a video game based on your novel or other derivative works. I feel they should state that simply. I see they would not be obligated to point that out either, I suppose.
On your response regarding the second point: ah ok “beyond the pale”, I get it. It looks like you would have a court battle on your case to convince the judge. Better to stay far far away from these greedy people.
Thanks Thomas
My understanding would be that you still own the copyright, but you’ve given away the right to use it. It’s like if you own a piece of property, but you lease it to someone for a $1/year for a hundred years. You’re still the owner, but they get to live on it and use it.
“lease it to someone $1/year for a hundred years.”
+100 thank you Sarah! That made it coalesce in my mind perfectly.
There is certain land in hinterland Ontario that you can lease it but cannot buy it. For example Native land. The Native Reserve can lease it to you for very low (they might do this if they see you are bringing valuable work opportunity for the community etc to them).
I understand –what an awful and terrible contract on any account.
Hmmmm, not keen on this one. I’ve tweeted this.
Good heavens, what a terrible contract. We’ve seen this, Hydra and The Atlantic trying to snag a 1,500 article and pay nothing for it.
We’re in a seriously changing world, where the author of “Wool” can sell a million ebooks and dictate to the New York publishing world, while Random House is trying to do the exact opposite.
This is not just technological disruption, this is near anarchy. Writers have to really educate themselves as to what they’re selling and giving away, because the predators are out in force.
On their FAQ page, it says
“So do you lose rights posting a novel on Autharium?
Of course not. If fact when you post your writing on Autharium you can also use this as proof of effective copyright. More information can also be found here within the Publishing Terms and Conditions.”
You don’t lose the rights but you do license them so you lose the right to use them.
A truly awful contract. Without setting up an account, I can’t see the mechanism for agreeing to them. I’m not a lawyer but, if it’s just a tick box, I’m not sure that would stand up in court, especially in view of the misleading statement above.
“You don’t lose the rights but you do license them so you lose the right to use them.”
Nicely put! So in other words it is basically the same thing then as losing them. That is, If I own something but I cant use it then its in effect like I don’t have it at all or close to it.
I mentioned land before. I have a friend who wanted to buy some govt land for sale from the Ontario govt. They said: “it would be years but the marsh on it can’t be drained.” Well 90% of the 10 acres was marsh. And if you tried to build on the 10% contractors told him the property would have various problems (never mind the mosquitoes you’d be dealing with). So you would “own” the land but you wouldn’t be able to do much with it.
About the agreement–I would think if it is just a tick box it would be hard for them to enforce it. But there is also that scary stuff that was said on the top of this thread by Marc Cabot.
Probably the best thing you can do is stay away and to spread the word among writers everywhere online.
Autharium is in beta mode, with enough publicity about this contract maybe it can be killed before leaving that ‘mode’.
They’ve already snagged quite a few authors.
Snagged authors already? Kristine Kathryn Rusch is right –writers in general have been trained not to look out for themselves in a business sense at all.
__
You know a short while ago PG had a posting about the brand new aggregator Draft2Digital. I am so excited about them (I can’t publish on the Nook directly as I am in Canada). And I want to avoid Smashwords.
Now just to be on the safe side I’m going to go read Draft2Digital Terms and conditions with a fine tooth comb. I’m sure they are fine but it won’t hurt to read the terms regardless.
D2D’s terms are fine and safe. But you should read them yourself anyway. Inside and outside publishing, read all contracts. I’m sure Passive Guy will agree with me when I say carefully read every contract anyone hands you in life and if it ain’t obvious and there’s money involved, hire a lawyer.
“every contract anyone hands you in life and if it ain’t obvious and there’s money involved, hire a lawyer.”
Thanks David I’m taking that to heart.
I went over D2D terms and they are fine as you said. Only one part confused me:
“5eThe following provisions of this Agreement will survive termination of this Agreement: Sections 1, 3, 4, 9, 11, 12 and 14. All rights to Ebooks acquired by customers will survive termination.”
Now one of those surviving sections #4 (commissions) is about D2D’s 15% commission. However I think they are referring to outstanding orders after termination. ie you terminated your book X with them but it won’t be instant everywhere as some books will be in the process of selling to a customer. I think 5e /section 4 means AFTER termination D2D is allowed to take its commission for such sales, unless I’m mistaken.
D2D makes it very clear though on the top of their terms:
“Can delist any of your ebooks from Draft2Digital or terminate the Agreement at any time. Draft2Digital is entitled to its 15% commission on sales of your books prior to delisting. Thereafter, Draft2Digital has no further rights to any income from your books. You are free to do whatever you like with your books.”
In other words unlike Autharium when/if you cancel with D2D everything reverts back to you (as it should).
I think you are correct in your reading of it. They’re saying there might be some overlap in sales made between you de-listing and the book coming off the sales site.
Hi David, thanks for coming on here again and pointing that out. I am a newbie to all this and through people like you and others I am slowly learning. I appreciate it !
This is so awful it puts me in mind of the south park episode where a standard terms of use inclided the right to be human-centipeded. This is like that, except worse.
I think y’all might want to check out Section 14. That section covers termination rights.
http://www.the-digital-reader.com/2013/03/10/new-candidate-for-most-ridiculous-digital-publishing-contract-autharium/
The only mention of the author’s right to terminate the agreement is (emphasis added)
Given the very limited commitments Autharium makes in the contract, I do not think this clause gives authors much hope.
Ah-ha. So technically, the answer to Question 5 on their FAQs:
‘So do you lose rights posting a novel on Autharium?
Of course not. If fact when you post your writing on Autharium you can also use this as proof of effective copyright. More information can also be found here within the Publishing Terms and Conditions.’
IS a big fat lie.
Thank you for highlighting this. I suspect we’ll be seeing more of these contracts in the coming months. Looks like there’s a pandemic sweeping the publishing industry this year. I believe the formula to the vaccine is: Knowledge=Empowerment
AD (MD)
Guys,
Just checked this. You don’t sign anything until you agree to be published.
Posting a work does not give any rights away
Possibly needs to be clearer on the site.
PP
That’s irrelevant because once they ‘publish’ you the Terms kick in and you can kiss your ebook rights goodbye for the rest of your life for whatever IP you submit to them.
Hello,
It seems as though the publishing terms and conditions have been taken out of context so hopefully I can shed some light here.
The above is all valid if Autharium were a self-publishing site, charging massively marked up rates for service extras and publishing everything submitted.
Autharium is not a self-publisher, we do not publish everything submitted and work more like a “traditional print publisher” with an editorial team. Although, unlike a traditional publisher we only ask for the ebook publishing rights, the print rights etc… are retained by the author. Even then, only if we agree to publish the book does the Author grant the license to Autharium. Authors can upload, share and ask for our community of freelance publishing professionals to help them perfect their manuscript, without signing any contract and are free to do what they want with their manuscript.
For most of the main ebook retailers you must have the rights to an ebook in each territory you release it to and some of these require exclusive rights too. This is why we ask for them. The terms and conditions are available on the foot of every Autharium page and again at the point of publishing.
Aside from this, a number of our authors have previously been self published and have been burned having paid thousands of pounds to receive very few sales. We are an Independent Publisher and are not trying to scam anyone. Testament to this is the feedback, testimonials and thanks we receive from our Authors.
Relating to Nate’s post and the article on The Digital Reader; The clause on digital rights in our contract is obviously not clear. We only ask for the digital book rights, not movie or audiobook. So good feedback and we will ask our law firm to tweak it.
Best regards
Jake
Jake,
Some here may be confusing things in posting at the site vs. getting published via signing the contract. This is true. And it may be that you operate more like a traditional publisher (meaning you pay a decent advance and foot the bill for editing, covers, marketing, etc., instead of expecting the author to do so). I’ve not had time to look.
But you’ve not addressed the main point of contention: asking for the author to license those rights for the length of the copyright. For example, with my publisher, I have the option 5 years to take my rights back. They’ve been licensed for 5 years. I’ve heard that a lot of traditional contracts went longer, and only recently been moving to even more and more rights purchased with less and less money (advance). But still, in most contracts, there is a way to get one’s rights back at some point.
What you would be asking me to do, if I so chose to use your company, is to license my digital rights in a way that I and my children will never have them again, short of your company benevolently giving them back to me if I ask. And I’m doubting the author will be getting an advance that represents the extent of those rights you are asking for.
I will grant your contract is less disastrous than Hydra’s (they want all possible rights for the life of the copyright, not just digital rights), but it is the length of the license of rights that is a big negative. No author should license their rights for the length of the copyright unless they are being compensated justly for it. That is not like a traditional publisher, though I’m sure they wish they could get that for no extra payment of money too. That unusual licensing of rights is worthy to warn authors about, especially if they are not getting justly compensated for the extraordinary length of licensing being requested.
So you might be able to address that concern by letting us know what a typical advance an author is given for handing over such a long license of rights to the company.
I was hoping for an answer to your questions. I guess the silence is our answer.
A poorly worded contract should be a bad sign to any author. On top of that, what you have there is a rights-grab. I don’t think it’s a scam. If that’s your offer, that’s your offer. I just think it’s an incredibly bad idea for any author to sign such a contract. An author should never permanently give up their rights.
You’re like a traditional publisher? No advance and getting a percentage of an authors ebook rights for life plus 70 years whether he/she terminates the agreement with you or not?
Perhaps you meant traditional publisher in the spirit of Random House’s Hydra imprint? Because I can see that.
You said: “The above is all valid if Autharium were a self-publishing site, charging massively marked up rates for service extras and publishing everything submitted.”
True selfpublishing sites dont do that. Amazon doesnt, Smashwords doesn’t, ebookit doesn’t, Kobo doesn’t
What you are referring to is not a ‘self publishing site’ but a vanity publisher. Vanity publishers and their related ilk charge huge fees upfront.
Also you say you “only ask for digital book rights” as if its a small thing. Digital book rights (ebooks) are the biggest plum on the money tree friend. Especially in the years ahead.
Also you say “For most of the main ebook retailers you must have the rights to an ebook in each territory you release it to and some of these require exclusive rights too.”
Then why dont aggregators like Smashwords, Draft2Digital, ebookit etc ask for them when they distribute to the main ebook retailers? If I distribute to say Amazon via Draft2Digtal , D2d does not need the erights from me to release the book to various territories via the ebook retailer–only my permission. I keep all erights.
Finally, even if it was true that all major ebook retailers need you to own the ebook rights on behalf of the authors you are distributing (they don’t but let’s assume)—why not give BACK those rights once the ebook is taken off your site by the author?? There is no reason for your ebook copyright holding to survive the author’s stint on your site once all his books have been pulled. Yet you keep the ebook rights for the author’s life and beyond even if he terminates the arrangement with you. There is no good reason for that.
Aggregators like Draft2Digital dont NEED to own my ebook copyright to distribute to major ebook retailers like Amazon, Kobo, ibookstore (ie that you have listed as you distribution channels in your FAQ section), so neither do you. Finally even if there were such retailers all you would need is permission from the ebook copyright holder (the author) not some sort of permanent ebook copyright arrangement that you outline.
Scam with typical scam apologetics. It would be “your offer” if you blatantly and obviously noted on your website in plain English that you were making a rights grab for the life of the copyright and explained what that means. You do not. You hide this within your legalese that people in our societies have been trained not to read and then try to justify this in the above post by playing games with the language (or engaging in spin doctoring, if you prefer). My publishers do not engage in these kinds of games. I’m really rather disgusted by the current trend in the business that you exemplify of “trying to sneak it into the contract.” Especially since “it” in this context generally means highway robbery.
I’m a professional copywriter based in the UK and used to work, on a freelance basis, through a prominent copywriting agency. At one point, several years back, they tried to get all their freelancers to sign a contract – and virtually all of them signed it without reading it. I, on the other hand, read the contract. I don’t have the exact wording to hand, but basically it assigned the ownership of all intellectual property you created, of any kind, at any time, to the agency. As I pointed out to the boss of the agency, if I invented a time machine or perpetual motion, then they owned it. If I wrote a best-selling novel, they owned it.
I didn’t sign and don’t work with that agency any more. But it scares me that a dozen or more professional writers signed that contract, without even knowing what was in it.
I wonder how many employment contracts contain nasty surprises like that.
I love how “Jake” from Autharium comes on here, spews some easily seen through lies, and thinks we will accept them. You’ve come to the wrong site and the wrong people to peddle your snake oil.
Thanks for all the ‘due diligence.’ Thank you for sharing all of this most useful information.
Your welcome Billy but its not over until more people know: please pass it on.