From Paul Aiken’s declaration in support:
41. We also wanted to be sure that authors of inserts were
proportionately compensated for their
work. The Authors Guild has extensive
experience with how rights are
acquired to include an insert in a
published book. Insert rights are
sometimes acquired for free by the
author (or the publisher, but it’s
often the authors’s contractual duty
to clear rights to inserts). In other
cases, the author (or sometimes the
publisher) pays a fee for the right to
display the insert. That fee is
usually a relatively modest sum. It is
invariably, in our experience, a
one-time fee: the rightsholder is paid
a flat fee for permission to include
the insert in the book.
Not for the first time, Aiken takes my breath away, but here goes:
The Authors Guild, which has as Aiken says ‘extensive experience with how rights are acquired’ undoubtedly also has extensive experience of the terms of typical permissions licences granted by publishers’ rights departments and literary agents, which invariably include limitation and/or termination clauses, and never envisage (sometimes specifically forbid) sublicensing to third parties.
Aiken avoids quantifying what he calls the ‘relatively modest sum(s)’ paid in licence fees. A dozen years ago I paid, as an editor, $98 and $105 respectively for the licences to two poems by a distinguished contemporary US poet (UK and Commonwealth only: US rights as well would have cost me double fees). The licence terminated after ten years. Incidentally, this particular poet required details of all the other poems in the anthology before she would consent to have her work appear in it. And let me add, I fully support her right to decide where her poems should be published and in what company.
Fees paid to other poets for the UK and Commonwealth rights ranged from $50 a poem upwards. For example, three poems by UK author Maureen Duffy (now a ‘representative plaintiff’) cost me £95 ($150); the agreement drawn up by her agent stipulated that the maximum number of copies to be printed before relicensing was 10,000.
Note that these were licences to use these poems in an anthology from a small feminist press; a mainstream publisher doing an anthology with a big print run would generally be charged more money. Note also that for well-known poets who are anthologized frequently these permissions fees will add up.
I shall say nothing about licences for short stories, of which I have no direct experience.
Now Aiken wants anthology editors and publishers to work in with Google and the Book Rights Registry in making commercial use of anthologized works in perpetuity, for no additional payment to the authors beyond what was paid at the time of the original print publication, except for
a) $15 a poem/story/essay for works included in books digitized on or before 5 May 2009 (but nothing, zilch, zero if the work is digitized later)
b) an inclusion fee ‘targeted at’ $50 for those anthologized works whose authors agree that they should be included in the Institutional Subscription Database; this fee, if paid at all (and let’s remember that the Institutional Subscription Database is pure vapourware) is
to be paid ten or twenty, even thirty or forty years down the line (see Attachment C to the settlement agreement).
In the meanwhile, in addition to collecting subscription fees for the database, Google would have the right to
a) sell online access to the poem/story/essay
b) permit it to be printed
c) sell it in e-editions of the anthology or collection
d) license Print on Demand editions of the anthology or collection.
Assuming a successful venture -
Revenue would flow to the Book Rights Registry.
Revenue would flow to the anthology editor.
Nothing would flow to the author of the poem/story/essay.
Nothing except a distant and uncertain prospect of a one-off $50 payment.
And this is what Aiken calls ‘[being] sure that authors of inserts were proportionately compensated for their work’!