An interview with Rebecca Giblin
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  • November 30th, 2018

Rebecca Giblin, Australian Research Council Future Fellow

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52 MIN
In this Episode

In this interview, Leanpub co-founder Len Epp talks with Associate Professor Rebecca Giblin about her background, her e-lending and Author's Interest projects, DRM and creator compensation, the potential role unfair competition law could play in regulating dominant companies, and author compensation in relation the economics of library ebook lending and the book industry generally.

This interview was recorded on September 18, 2018.

The full audio for the interview is here. You can subscribe to the Backmatter podcast in iTunes or add the podcast URL directly.

This interview has been edited for conciseness and clarity.

Transcript

Len: Hi, this is Len Epp from Leanpub, and in this episode of the Backmatter Publishing Industry Podcast, I'll be talking with Rebecca Giblin.

Based in Melbourne, Rebecca is an Associate Professor in the law faculty at Monash University, and an Australian Research Council Future Fellow.

Rebecca's work explores the connections between regulation and culture. Working with a team comprised of researchers and social science, data science and the law, Rebecca is a chief investigator of an Australian Research Council's Linkage Project, that is designed to study the legal and social impact of library ebook lending, or e-lending.

She also leads the Author's Interest project, which explores complex issues concerning copyright and its relationship to author remuneration.

You can learn about the e-lending project at elendingproject.org, and you can learn about the Author's Interest roject at authorsinterest.org, and you can follow Rebecca on Twitter @rgibli.

In this interview, we're going to talk about Rebecca's career, her work, some aspects of the copyright and the e-lending project, and the Author's Interest project.

So thank you very much Rebecca for being on the podcast.

Rebecca: I'm very happy to be here.

Len: I always like to start these interviews by asking people for their origin story. So, I was wondering if you could tell us a little bit about maybe where you grew up, and how you ended up in the law.

Rebecca: I love this idea of an origin story. I hadn't thought about that before, but I suddenly feel like a superhero.

My origin story is, I grew up in a house without books. I was one of those little kids who was just starving for things to read. So you would always find me - if I had five minutes and I had to walk somewhere, I would be doing it while reading a hardcopy book. I would walk into trees and all kinds of things like that. And that was fine, because what I was reading was much more important than not bumping my head on something.

Libraries and books are really central to me growing up and becoming the person that I am today. It was only through having access to books in libraries that I was able to feed that obsession, and of course grow up into somebody that writes books of my own.

Those beginnings I think tie really clearly into the kind of work that I've ended up doing as an adult. I have got, like probably most of the people listening to this podcast - I've got a "to read" pile that is bottomless. There's no shortage of anything to read now.

But I have never forgotten that hunger to get access to books. That, I was always completely hustling for.

I remember going down to the local - we call them "op shops" in Australia - but it was the Salvation Army second-hand, thrift store, for the American Audience - and I would completely hustle. I would identify the volunteers who I thought were the softest touch, and I would negotiate them down. I could get books, sometimes five for four cents, things like that.

What I've grown into doing as a researcher, I've been an academic for about 11 years now - and my Ph.D. before that - and my work really focuses directly on access to information, as well as getting authors paid.

It sits really centrally at that intersection of law and culture. I particularly focus on literary culture, and those questions of, how does the way we regulate books affect the kinds of books that get produced and the way people get paid?

Len: I think I managed to find a reference somewhere to the fact that you went to law school. You didn't go directly from there into academia, but you practiced for some time?

Rebecca: I did practice for a little while. Not too long, I have to say. I fled back into the academy quite quickly. I think that in my very first year out of law school, I had a terrific experience. I was articled - which is what we call the "baby lawyer training" - to the Victorian government solicitor. There, I had the opportunity to do really incredible work, right from the first day.

I actually remember the first day. The Deputy Victorian government solicitor wandered up to my desk. I was the only clerk there.

He dropped a file and said, "Can you draft a [? 04:04] advice for the Attorney General?" And at that point, Google wasn't even invented yet. Otherwise I would have Googled "What is [?]?" But my answer was, "Yes, I guess." And then I figured it out from there.

Having an incredible year of training, really in-depth legal matters - the kind of responsibility that you don't usually get until maybe a fifth or sixth year lawyer in other environments - meant that when I did go into commercial practice, I really missed that hardcore legal analysis. That was what drove me to grow and start doing a Ph.D, which was an incredible privilege - to be able to spend my days reading and writing and talking to people much smarter than me, and developing ideas.

Len: I noticed from your bio that you've actually managed to be around a lot of smart people in a lot of very interesting places. You were at Columbia in New York. You spent some time at Berkeley in California. You were at Sciences Po in Paris. That must have been just an amazing experience.

Rebecca: They've all been really incredible experiences. Certainly when I was appointed the visiting Kernochan International IP Professor at Columbia back in 2011, that was- to be in that environment, where you would go into the faculty lounge to get your coffee, and there might be a Supreme Court justice there. There might be the winner of a Nobel Prize, or just somebody almost definitely that you're going to have a really interesting conversation with. That was a real eye-opener for me into a world of big ideas, that I got really addicted to.

Len: Was your Ph.D. in Australia?

Rebecca: That's right. And that's one of the reasons why I've spent so much time since travelling around into different environments, and making sure that I'm exposed to different ideas. That's particularly valuable for somewhere like France at Sciences Po.

The French approach to copyright in particular is vastly different to the Commonwealth and North American approach. It's really important to understand those ideas, and where they're coming from, in order to be able to think sensibly about things like international copyright law reform. Because just pretending that those different ideas don't exist, isn't going to move us forward on reaching some kind of consensus about reform that fits with all of those different ideas.

Len: That's very interesting, thank you for bringing up the sort of unique situation in France. It actually came up in an interview I did earlier today with someone else, but from a completely different angle. It's interesting, because we're in this moment where, at least in the tiny section of the news that's interested in the book publishing industry and literature, right now there's a little controversy brewing.

Well, I say "little." There's a controversy brewing in the cultural world in France because a book that was self-published on Amazon's CreateSpace was nominated for a prominent literary prize. There's a lot of people talking about it. The situation in France is unique, and it's very like complex. Because there are aspects of being - kind of technocratic, at least as I see it, desiring there to be a guiding hand leading the culture. And this finds its way not just into business practices, but also into a lot of regulation as well.

Rebecca: The French system is absolutely fascinating, particularly as regards the book publishing regulations.

One of the things that people might not understand about France, is they've got really strict rules that are designed to ensure that small booksellers continue to be viable. That's why you'll still find a really good bookshop, even in quite small villages, when you visit France. Certainly in the-- Some of the regional cities like Léon and Talus, they've got bookstores like I've never seen anywhere else in the world.

But what that comes with is this kind of gatekeeper attitude that we - so, I tweeted that article too. I was really fascinated by it. We have this gatekeeper attitude where the booksellers are absolutely outraged that this author who self-published, has been allowed past the gatekeepers and given this acknowledgement of quality. They don't seem to be blaming the hordes of publishers that refused to publish this work in the first place. They're blaming the committee and indeed the author himself.

But the French system also has some really interesting protections for authors that I think other countries could learn from. One of the things that we're really interested in at the Author's Interest project, is reversion rights. That means rights going back to authors after maybe a period of time, or some other factor occurring.

What they've done in the French law - since 2014, they've had a law that says, "If your book's been published for at least four years, and you haven't received any royalties for the last two, then you can get your rights back, you just have to send a letter." You get that as a right.

That's a really interesting balance to have struck, that says, "Okay, well we know that in a traditional publication contract, the publisher will take the rights for the entire term of copyright, no matter how long that is. And this says, "Well, in the world that we live in today, if it's not of commercial interest to the publisher, then the author should be able to get it back."

That's a really interesting thing to think about. We've got different reversion systems that operate elsewhere in the world. The US one, that you might be familiar with, allows authors to terminate after 35 years. And then we've got another one in Canada, for example, that says the rights automatically go to the author's heirs 25 years after death.

I don't know if you've seen in the media this morning - lots of people are talking about Bryan Adams, the Canadian songwriter, coming up before the Canadian parliament and saying, "We should delete just one word there, the bit about death. And say, 'Canadian authors should get their rights back after 25 years.'"

Len: It's funny you bring that up. Literally like two minutes before this interview started, I clicked over into the news and saw Bryan Adams in a copyright story.

It is interesting when you start looking for it, and you see how copyright really is all around us all the time - not just in legal form, but in the news, because it really is something that's so important to so many people. I'm looking forward to talking to you about a couple of those issues a bit later.

But before we move on, actually - it's funny, you brought it up - but I remarked from something you wrote, I think about the Author's Interest project - about growing up feeling a scarcity of books.

That resonated with me. Because in discussions I have with people, including authors, but also people in the publishing industry - I've actually used that particular experience as a way of categorizing people. Because there are some people who, you can just tell when you talk to them, that they experienced scarcity one way or another. In some cases it's like, "I couldn't get books about divorce, because I lived in a very Catholic community." In other cases it can be, "My family was very poor," or, "We lived in a very remote neighborhood." Or, "My parents didn't buy books. They just weren't into that kind of thing."

One very particular way that I like to kind of zero in on this, in a slightly antagonistic way, is - when people don't just say positive things about print books, what could be wrong with that? But when people make negative comments about ebooks.

I find that those tend to be people who, even in their imagination, haven't experienced scarcity. Because once you have, you're like, "What could be better than the Gutenberg Project?" As soon as I could read books on the computer, the first thing I looked up on the internet was, The Brothers Karamazov.

Do you think that that experience has had an impact on your approach to things?

Rebecca: Absolutely it has. Indeed, I remember from when Gutenberg started, I was reading that on my screen. I was reading everything on my - from the time the first PDAs were able to show books with just awful screens, terrible battery life, all of the eye strain - I was reading it. Because I was still so hungry for something to read at that point.

So I hear people say, "Oh I can't read ebooks." For me, I probably still read about 150 books a year, which is less than I would like, but probably more than most other people in my line of work. If I had to have all of those in physical form, there's no way I could still feed that habit.

It's really interesting as well - there's a lot of disdain for ebooks. And I think that there's a lot of downward pressure on them. Publishers certainly, I'm thinking of Hachette in particular, are really not encouraging of this format.

I wonder sometimes, who do they think their audience is? Certainly, my generation and then the next ones coming up after me - if you want them to keep reading books, where are they going to put all of these physical books? We've got massive house prices around the world, we've got students graduating with more and more crippling debt from college. We're not really in a paradigm with a massive house in the suburbs that's easily accessible, and plenty of disposable income for people to keep buying physical books. So, ebooks are I think a terrific substitute for people that wouldn't otherwise - for whatever reason - be able to access physical.

That's one of the reasons as well, why this project that we're doing into e-lending in public libraries, is so important. Because if you're a kid growing up today and you live in a place where you're lucky enough to have a - I would say an appropriately resourced public library system, then you don't have to be hungry for books. If you've got access to the internet and a device to read on it, you'll be able to go to your library's website, download an app, log in and get as many books as you want from wherever you are. And that's an incredible thing that digital has enabled.

Len: We'll be talking a little bit more about that later, thanks for that great answer.

So, this interview was not timed to coincide with the internet freaking out about copyright rules, but it's just a couple of days ago that the EU voted on its copyright directive, moving the legislation along to a new stage. In particular, there was something called Article 13, that people were very preoccupied with. And there was also something called, Article 11. I'm guessing that you're quite up on these things?

Rebecca: I've certainly been following along.

Len: I was wondering, as someone who works in this area, if you could talk a little bit about what you think is going on? Will there be an internet filter?

Rebecca: Look - procedurally, this was really concerning, how these changes came to be introduced really at the last minute. There was a change to the directive. And Article 13 in particular is something that was introduced.

For those people who aren't familiar with it, what it does is it requires online providers to make databases of copyrighted material, and if a user tries to post something that might match one of those copyrighted works, then the system basically has to censor them.

I'm really concerned about this proposal. But in large part, my concerns come from worries that I have about the virtually monopoly power of some of the largest technology companies that we've got at the moment.

Take Amazon, for example - publishers decided to do something really similar with Amazon, way back when it started. They decided that if Amazon was going to sell ebooks, then DRM or Digital Rights Management technology had to be attached, so that nobody could easily copy them.

Then they made sure that laws were passed making it illegal for people to bypass DRM. And then that also got put into international law in various treaties, requiring countries to enact that sort of law.

That all sounds really good at first, but let's think about what that has ended up doing. What that has meant, is that people started using Amazon when Amazon was basically the only widespread provider with the best catalogue. And then they've got lock in.

Because they've bought books on Amazon, and they don't want to have their library spread out across a whole bunch of different apps and different platforms. They want to make sure that they're buying books from someone who's going to be there next year. And so they keep buying books on Amazon.

Because of DRM, nobody can transfer their books to another platform. And that means that people can't start up competitors that reduce Amazon's power, and enable negotiation of different kinds of terms that might better suit publishers and authors.

All I think we're doing with Article 13, is exactly the same trap. This is clearly aimed at the big internet giants, like Google and Facebook. But Google and Facebook will have absolutely no difficulty complying with this. What this does - a requirement like Article 13 - is it puts massive roadblocks in the way that prevents a new company from starting up and competing with Google or Facebook.

So, I think it's really poorly thought out, and a real disappointment that even as we're living the difficulties that come from the Amazon experience - people still keep trying to repeat them.

Len: I'd just like to take the opportunity to give a shout out - today is the International Day Against DRM, that's organized every year by this organization that we support. So thank you very much for bringing that up, and for that great explanation.

Some people representing the rights of authors in Europe, have claimed that the copyright directive - including these articles - will actually result in authors earning more money. Do you think that's true?

Rebecca: Look, again, it is really complicated - but certainly the experience that we've seen in some European countries, like Germany for example, rhat created a link tax - they made it so that if a search engine wanted to make available snippets of news, like you find in Google News, for example - with a headline, then they would have to pay for that. The search engines responded by saying, "Okay, well that's fine. But then we're not going to include that in the search engine, rather than pay for it." And what we saw happen was just a massive reduction in traffic to those websites.

So that's what I mean when I say that it's complicated. If we want to get authors paid, I think we need to think much more directly about how we divide things up. What the bundle of rights is, and who gets what.

I'm very sympathetic to concerns - it's more than concerns. I think there is a visceral rage and distress by many working in the publishing industries, that companies like Google and Facebook that invest so little into the production of the creative material, are nonetheless reaping such an enormous share of the value that results from that.

I absolutely get that. I don't think things like link taxes and filtering are the way to address it. But I do think that we should address it. I think rather than copyright, I think a much - the reason why copyright doesn't work is because it creates so much collateral damage, right? Very often. So things like reducing the amount of traffic that goes to the site in the first place, or making it unfindable in the first place - that's collateral damage.

What I think would be a much better line of pursuit is to think about unfair competition law. Are Google and Facebook unfairly competing with other online news platforms, for example? I think that an appropriately drawn unfair competition law has much more potential to help rectify this imbalance with less collateral damage.

Len: It's interesting you bring up collateral damage. I have all the common preoccupations about it, but another concern I have about this kind of thing is that, when laws are created - in order to be useful, they need to be enforced. And the act of enforcing those laws has an impact on the people and the societies who enforce them. This can be anything from immigration policy, to things like copyright.

For example, we have a policy that you can get a refund within 45 days with two clicks, no questions asked, on our site. And we occasionally get people going, "How can you do that? Doesn't that mean someone can just download the book and keep it, and then get the refund?" It took us a while to sort of get to the right response, which was: our position is that we shouldn't treat everyone like they're thieves. Because when you start adopting that attitude towards everyone - I mean, I would say, somewhat romantically - either it's going to corrupt you, or you were corrupted in some sense in the first place to arrive at that attitude towards other people, in some weak way.

It's a very powerful business approach, treating people like they're innocent, until you have a reason to treat them like they're guilty. It frees up a lot of things, and makes a lot of positive things possible, that aren't otherwise possible.

And to normalize the idea that everybody, when they're uploading something, should be treated like they might be infringing, just strikes me as like something that could have some very damaging collateral damage - including it becoming invisible and just an everyday idea.

Rebecca: It's a really good point, this over-compliance, treating everybody like a criminal.

Len: Moving on to the next part of the interview, I'm really looking forward to learning more about the E-lending Project. I'll link in the transcription to a video of you speaking recently at a conference in Kuala Lumpur for - I think it was the International Federation of Library Associations?

Rebecca: Yes, that's right. They had their World Library Information Congress.

Len: Could talk a little bit about what this project is?

Rebecca: So, libraries have always been able to buy and lend physical books, without having to get the publisher's permission. But for ebooks it's different, because to buy and lend an ebook, that involves the making of copies and transmissions, which means that copyright gets involved.

So for ebooks, publishers suddenly have the right to say, "Okay, yes you can lend out ebooks, but they wear out after 26 loans." Or, "Okay, yes you can buy this book, but you have to buy 1,000 more from us if you want that one." Or they can say, "No, you can't have our books in your e-collection on any terms whatsoever."

It's not that anybody made a deliberate decision to regulate ebooks differently. It's just a consequence of the nature of digital. What we wanted to do is work out what this actually means for public libraries' abilities to fulfil their public interest missions.

So we've got a team - you introduced it earlier on - of data scientists and communication and legal researchers. We've been working on this - the project started about four years ago now. We've been funded for the last two.

We've now gathered an evidence base about how publishers are licensing books to public libraries in five English language jurisdictions around the world. We've done a bunch of different studies, but the one that we just released in Kuala Lumpur is one looking at almost 100,000 books across Australia, New Zealand, the UK, the US and Canada, really examining in quite fine detail, what are the differences across countries? What are the differences across type of publisher? And now we're going to move on and start figuring out how this is impacting library decision-making.

Len: I read there was a very interesting procedural hurdle, which was, you were trying to get data from companies that compete with each other. How did you manage to pull that off?

Rebecca: I should say thanks, first of all, to all of the aggregators. Every main aggregator did agree to participate eventually. It was a little bit difficult to convince them to provide this data. The libraries couldn't just tell us about availability and pricing and license type, because in this kind of contract there's usually quite strict confidentiality clauses. So completeness was really important to us. We needed to get everybody on board - and that meant convincing five companies that at least for a small sample of books, that they should provide us with this information.

I think they didn't want to largely because - well, it's not their problem. They probably felt it was not their problem. And they were probably a bit suspicious about how we would use it. It's really nice to see that there's been a big turnaround since then.

One of the things that we were told by the aggregators is there's absolutely no point investigating this or collecting this data, because what you're going to find is that the terms on which these books are made available, are going to be exactly the same to all of us in the single jurisdiction.

What we're talking about now is the focus study that we did, it's separate to the one with the 100,000 books. This one is a deep dive into one jurisdiction to understand the differences across platforms within one country. They told us, "Don't even bother doing that, you're going to get the same price, the same licenses for everybody, and there'll just be some little differences with availability." And we said, "Okay, well that's fine, but we're researchers so we're going to do it anyway." Our library partners were very supportive of having this done, and made that clear to the aggregators. And the aggregators all agreed to participate.

Fast-forward to the results. We found that there were different license terms in almost half of the cases. That was a massive surprise, to us, the libraries - but particularly to the aggregators as well. This is their business. But because of the secrecy around it, even they didn't know that these differences were there. So they weren't expecting to find this at all.

One of the funniest examples was that one aggregator got in touch with us, and they were pretty indignant about this, they said, "Your data is wrong. We can see that this one platform has books from a particular publisher available on a perpetual license, but in fact that publisher changed to metered access ages ago. So your data's wrong, what are you going to do about it?"

We looked into it, and what we found is that the publisher had indeed changed their terms for four of the five platforms. But for the fifth platform, they didn't get around to doing it until almost, I think it was just over six months after we collected this data. And all told, it took the publisher five years to roll out the updated terms to all five aggregators. So that's really fascinating.

What we learned from this is that it's very difficult for libraries to know what's going on, like how to choose an aggregator based on license and price. But it's also very difficult for aggregators to compete on those things, because they don't know what's happening either.

Len: You mentioned metered versus perpetual access. And I love the image you use of exploding books. I was wondering if you could talk a little bit about how library lending deals work?

Rebecca: Absolutely. I've also just written a new post on the Author's Interest website that people can have a look if they want to think about this a little bit more. It's really important to think about it, for publishers and authors as well - how these deals are structured and what that means for royalty and also public lending right income.

There's two main licenses that were applying at the time that we did this study. There's one called, "One Copy One User," or OCOU. That's a perpetual license that lasts for as long as the library has access to the platform, whereby they can lend the book to one reader at a time.

The alternative is metered access, which is also limited to one reader at a time. But then there's further restrictions, and that's either by the amount of time, or the number of loans, or both. When you've got a time-limited license, any one that's got a time limitation on it - that's what we call an exploding license. Because these ones get deleted from library collections as soon as the time is up, regardless of whether anyone has read them at all.

A few interesting implications come from this. When we think about the royalties that are payable, the One Copy One User books - that looks a lot like a sale, the One Copy One User licenses. And they're probably going to be paid by publishers at the same rate as an ebook sale. So, maybe 25% or 50%, really depending on your contract.

For the metered access ones, those are much more clearly licenses. They're not analogous to a sale. Those ones should be paid at a higher rate, depending on what your contact says. But it might be 75% or And I'm trying do some work to understand if those licenses are being correctly paid at those higher rates. But it's very difficult to find out due to the opacity of royalty statements in the jurisdictions that we've been looking at.

Then there's public lending rights issues - they're separate to copyright in most countries. They see authors receive some additional money for use of their books in public libraries. In Canada and the UK, those have recently been extended to ebooks. So an ebook does get an additional payment, just like a physical book.

In Australia, we haven't yet had that. The government has been calling for more data, to be able to understand the licensing arrangements, whether libraries are already paying on an ongoing basis for books, and what that looks like. Now that we have finally provided all of this data, we're really hopeful that it's going to be able to move forward, and we'll get the PLR extended.

But some of the things that we found when we investigated these practices were really concerning. That's particularly the case for books with lower demand.

I'm sure listeners to this podcast will know that books have high rates of cultural depreciation. Sales drop off a cliff maybe after six or eight months, at the outside. Indeed, I'm more and more hearing now that three weeks is about the shelf life in a bookstore for a book, unless it really picks up some steam. And of course, there's a lot of books being published. So lots of competition for eyeballs.

When we had a look at the ways in which older books were being licensed compared to newer ones, we found that older books were being made available on exploding licenses at similar rates to the very newest ones. We then looked at the pricing and said, "Maybe it's okay if its' on one of those time-limited licenses, if the price is lower, to reflect that it's going to have lower demand." But again, our study looking at these almost 100,000 books - almost 400,000 licenses in total - we found that that's not the case either. The pricing of older books is actually higher on average than for the very newest books.

One of the concerning things that that raises, is that it might be preventing public libraries from including those older, but still culturally valuable books, in their collections at all. Because if you're a library, you've got a fixed collections budget, you want to maximize circulations - get the most value out of that. Are you going to buy the new book that's on a two year, 36 loan license - or are you going to buy a Pulitzer Prize winner from the 1960s that's on the same license at the same price, but is probably not going to circulate anywhere near as much?

Len: It's really fascinating, these issues, for institutions that have public interests at stake, like libraries do. I mean, when a book goes out of a library, then people who can't afford it can't get it anymore. That piece of knowledge, that piece of culture, that part of history, is actually gone for them.

There's a concept of copyright libraries, that I'm sure everybody's heard about. The Library of Congress, in the United States, gets a copy of every paper book that's published. The Bodleian Library and the British Library in Britain, and I think there's actually a couple of others in the UK as well, have that. Do you have copyright libraries like that in Australia?

Rebecca: We do, and in fact the National Library has recently started a digital deposit scheme as well, that's supported by legislation, which is just starting to be rolled out now, to ensure that there's at least that archive of books.

But that's quite a separate question to - are they actually accessible on the ground, and how accessible are they on the ground to people living in the society?

I love the Norwegian model, for example, where they've created a digital public library with every book published in Norway from - don't quote me on this, but from about maybe 10 years old and older. They're paying for all of those uses. That's what they put the money from their mining boom into - one of the things was the creation of this digital public library. That's proving really incredible. I saw a statistic recently that really made me raise my eyebrows about how many of those books had actually been accessed.

The idea was, people are just going to read the few most popular ones, and the rest have been digitized for no reason. But in fact, that long tail was being accessed at really high rates. Most of those books had been looked at by someone.

I think there's so many important stories being told, and in particular I'm thinking about important Australian stories - that don't necessarily sell many copies, but should still be accessible and appropriately paid for to the members of that society.

That brings me to the economics of the book industry. Can we jump into that a little bit?

In Australia, again, it's a fairly small country. A bestselling Australian book will sell maybe 7,000 copies. I was looking at a breakdown recently about where that money goes. This was put on Twitter by [?]. It's a recent one. "Who's making the money?"

So if we sell 7,000 copies at $30 each, we're talking about $210,000 retail price. The booksellers are going to get 40% to 50% of that. So they've put 40% as a conservative estimate, $84,000. But I think these days booksellers are asking for closer to 50% for lots of different kinds of books. The authors share at a 10% royalty is going to be about $17,850 - after we take out the agents cut of maybe another $3,000. And that leaves $104,000 to the publisher to cover everything else - that's the printing and the transport and the distribution, dealing with returns, the typesetter, the proof reader, the editors, the publisher, jacket - all of that other stuff.

Now when we look at this, we see it's not that there's no money in publishing. But we see that the amount of it that actually flows down to the author, is pretty small. And also, when we talk realistically about the book industry, we see that the amounts that flow through to the other people working for the publisher - the editor, for example - are not usually crash hot either.

This is an industry that I think is still only just starting to grapple with its exploitation problem - the reality that in many cases, it's built on a backbone of underpaid, largely female labor. Nobody is necessarily doing particularly well.

There's one of the comments on this tweet that says, "The answer is no one. No one makes the money in publishing." I think it's a very, very difficult industry, one that still has a lot of work to do in thinking about how the money that is made from it gets distributed. How things are done. Whether all of the things that a traditional publisher has done in the past are still worth doing, or whether they should cut back on some of that and give some more to the author.

I think we've got real problems when we say that the person who might have spent one or two years sitting down and pouring their blood and labour into writing the raw material for this, comes out with maybe $17,000 of the $210,000 that comes from a bestseller.

Len: This is probably a great time to move on to talk about the Author's Interest project, since you bring up economics and labor.

One of the striking things you write about in relation to that project, is the fact that in activities like book writing, lots of people want to do it - and they want to do it very badly. And this creates this interesting economic situation that's ripe for low pay.

Rebecca: That's right. My work ties in very closely with the work of cultural economists, like Professor Ruth Towse, who have spent their careers studying the economics of creative labor markets. When I speak to authors, I see everything that they have documented, just right in front of me. Authors are terrified that they might do something that will make them lose a book deal, or make them less attractive to get a deal.

This was really striking recently. I met a woman who had just signed a book contract with one of the big five, with the educational arm. This saw her receive - I think it was $1,200 US dollars. $1,200 US dollars, in exchange for a complete buyout. They took all of her economic rights whatsoever for the entire term of the contract. That meant that no matter how successful the book was, she was not ever going to see another dollar under the contract, in addition to that upfront lump payment. The payment didn't come until after she'd fully completed the book and it had been published.

It meant that she would get no income whatsoever from the copying of that book by schools or universities. Under our statutory licensing payments, 100% of that money would go to the publisher. It was likely for a book of this nature that it would be copied, and there would be payments under that. It also meant that the author wouldn't be entitled to any money under our public lending rights, because the way they're set up means that the author only has an entitlement if they have an ongoing entitlement to royalties.

And still, she's telling me all of this, and I'm very concerned about it. Still, she says - I ask her if I can write about it and speak about it, and she says, "Yes, but can you please make sure that you don't use anything that could tie it back to me, because I want to make sure that they'll still publish my next book."

That just tells us a lot about what we're dealing with. There are really intrinsic drives to create and to share and be published, and to have that recognition of being published with what we might see as a prestigious publisher. Rhey can lead authors to accept far lower amounts of money than what they would expect for other forms of labor.

If you're an author and you're listening to this, think about how much you would charge to paint a fence, compared to write the book. They're probably going to be really different amounts.

Now, what we've got in a lot of countries - the UK and to a large extent Canada, the United States and Australia - qe take this thing called a laissez-faire approach to contract, the freedom to contract. But in that case, what it means is, it's freedom to give away all of your rights. Probably for very little, before anybody actually knows what they're worth.

And I think that that that laissez-faire approach demonstrably harms not only authors, by preventing them from getting a fair share, but also society, because it means that rights can get locked up for a really long time, without necessarily any obligation to continue exploiting them.

That's one of the reasons why reversion is such an interesting possibility for reform. Because if we were to have strong reversion laws that saw the rights go back to authors, it would open up all kinds of interesting possibilities that are currently foreclosed.

Let me give you an example that ties in the E-lending project to the Author's Interest project. The libraries that I've spoken to aim for about a $1 per circulation amount in a lot of cases for ebooks. So let's use that as a quick rule of thumb.

$1 per circulation. Let's say you're an author of a five or ten year old book. It's no longer really selling. You're not really getting any royalties. Your publisher would be happy to sort of bung it up there in the catalog for libraries to buy. But libraries aren't really buying it, because the price and the license terms don't really make sense.

If we had a reversion law like the French law, or a time-based law that saw the rights go back to authors in a wholesale sort of way, we could readily imagine a new market emerging for authors to be able to directly license their books into public libraries, say for example, for $1 per circulation, which would go entirely to authors. And it might be that the book is then held in all public libraries in a particular country, wherever the author licenses it. It might not be read very many times. It might be read or borrowed 50 times a year, and that's $50. That $50 is not of any interest to the publisher, right? But it might well be of some interest to authors who have much lower incomes to start with, in many cases.

That availability of those books could - the widespread availability of them could indeed see that they get a much larger audience than that.

We've got two problems. We've got money being left on the table, and we've got authors not getting paid. There are ways to reconceptualize the way we allocate the rights in order to fix both of those problems.

When it comes to reversion, one of the responses that I keep hearing from publishers and their advocates is, "Well yeah, of course - but you need to make sure that there's enough incentive for the investment to be made in the first place."

Absolutely. Copyright is about rewards and incentives. We want to incentivize the investment in getting the thing created in the first place, and continuing to make it available. And we want to reward the creator who made it.

So if we think about those two things - they're actually quite separate, how we give effect to them. To incentivize the creation and the ongoing investment, we don't really mind who gets what's necessary to incentivize the rights - as long as the thing gets created and made available.

But the rewards share, we do care who gets that. That's justifiable only for the creator themselves. And if we disentangle the incentives and rewards motivations like that, we can start to see that it is possible to give better effect to both. We can maintain incentives, while doing a better job of getting rewards to authors.

If you look at all of the economic analyses about what is necessary to incentivize that initial creation of works, the answers come back at between about 10 years and a maximum of 25 years of exclusive rights, are enough to incentivize even the most lavish investments.

On top of that is the reward share. And so it makes a lot of sense to structure rights in a way so that the author does get another bite at the cherry, and able to enjoy that share.

It might be that they license the work right back to the same publisher that they did before. But it might be that someone else values them more highly, or that there are better options for the author to distribute it directly to the audience. And those should be available as well.

Len: This is a very interesting distinction you make, between ownership and authorship, and the moral claims that an author has that are more long term than the sort of investment - the claims that one has, once the publisher and you've made a financial investment in something.

I've got a question. One thing, if one follows the publishing industry news, that comes up, say once a year in many different countries - is, how much are authors earning? I know you've got some data about this on the Author Interest website.

This came up in the news not too long ago, it seems to me in the UK, and various author advocacy groups will highlight these numbers, usually with the hope of advancing author's interests.

The question I have for you is - just to invoke a kind of cartoonish image, if I'm a big five publishing company CEO, and I'm sitting in my tower in Manhattan - do I care about any of the news around what authors are earning, and any of the complaining that people are doing?

Rebecca: Look, I can't say what a big five CEO is thinking in his tower. But I am about to give a keynote at the Small Press Network here in Australia's event in November. My talk's called #notallpublishers, because I think that it's really important to recognise that even while we have the Simon & Schuster's and Penguin Random House's of the world, reporting profits of around 16% - that is very far from the reality for most smaller, independent publishers, who are running on passion and a shoestring and a hope and a prayer, and are just telling the stories that need to be told. Part of that is for the love of it, and nobody's really making very much money, but the work is important, and they're driven.

For these publishers, I still think that there's a lot that they can do to think about the traditional way that they have designed author contracts, and how they might do it differently in the future. Because I think these publishers are concerned about the little share that is left for authors once all of the other bills have been paid.

They would like to do more, but there isn't any more. You can't squeeze blood out of a stone.

When we look at one of the top literary prizes in Australia, the Miles Franklin - you can sell 3,000 copies after making it onto the shortlist, that's it - and that's a pretty respectable showing. There's just not any money in it.

But what I think these publishers can do, is they can say, "Well, actually, what do we need? Do we need to actually take the rights for the entire term of the copyright in order to pay off our investment, or to have a chance of paying off our investment?" I think the answer, if they really think critically about it is, no, right? But they can think about the distribution, and they can think about whether there should be a wholesale reversion right, whether it would be actually in their interest to push for all rights to revert back to authors after a certain period of time, or in certain circumstances.

That would then free up rights for them to continue investing in material that was say originally published by the big five, and is no longer of interest to them, but the smaller publisher thinks that they can find a new audience for it. Or they can do something better with it.

I think that - while I can't say what the big five are thinking, I have a lot of faith and a lot of love for the independent publishers, particularly here in Australia, that I'm really familiar with. I'm looking forward to talking to them about how we can do things a little bit differently.

Len: My last question is - so you've been running these two great projects. I'm always very personally happy to hear about governments supporting projects like this with funding. Are there going to be any regulatory proposals that come out of either project from you?

Rebecca: Yes, that's the idea. What we really are doing at this stage with both, is we're building the evidence base in order to allow us to make recommendations for reform of law - both domestically and internationally. And also reform of practice, like I've just been talking about - in the publishing space, in the library space as well. We are already talking to the government about how what we've discovered in the e-lending landscape can push forward those discussions about extending the public lending rights to ebooks.

I'm really hopeful that this is going to be the nudge that was needed to move that forward expeditiously. But absolutely, the only reason I'm doing this work, is with the idea of effecting some meaningful change that actually makes things better for authors and the broader public.

Len: Thank you for that very optimistic note to end the interview on. And thank you for taking the time out of, I imagine a nice afternoon in Melbourne, to talk to me way over here.

Rebecca: Thanks Len, it was lovely to chat.

Len: Thanks.

Podcast info & credits
  • Published on November 30th, 2018
  • Interview by Len Epp on September 18th, 2018
  • Transcribed by Alys McDonough