Why the ebook you want isn't for sale in your country

Tor Books' senior editor Patrick Nielsen Hayden takes to the comments of John Scalzi's Whatever to explain why ebooks are often not available at all places in the world at the same time. It's a combination of the way that publishers feel about e-rights (publishers who acquire print rights almost always demand e-rights, too), the fact that writers and their agents sometimes feel that they can make more money by selling to different publishers in different regions, and the fact that ebook retailers have a hard time keeping things straight when it comes to who has the right to sell where, and generally default to the "safe" choice of not selling at all when there's any doubt.

John and his agent could have sold us the “World English” package of rights, which would entitle us to publish the book in English everywhere–we would certainly have been willing to offer for that–but instead they opted to take the slightly riskier path of selling us rights only in our core market, reserving the “UK-and-a-bunch-of-Commonwealth-and-former-Commonwealth-countries” package to themselves, in order to try to sell it separately to a British publisher. (This is a slightly riskier path for most genre writers who aren’t top-level New York Times bestsellers, because British publishers don’t really buy very much SF and fantasy from the US below that sales level. This wasn’t always the case but it certainly is now.) After a period during which I imagine John’s agent shopped the book around to various British publishers (I don’t know the details because it’s, literally, not my business), they accepted an offer from Gollancz. However, that deal was concluded just a month or two ago, so it was vanishingly unlikely that Gollancz was going to get their edition out simultaneously with ours. I believe their edition is scheduled for November...

The more interesting question you ask is: Why can you, in South Africa, buy a copy of the US REDSHIRTS hardcover from (for instance) bn.com in the US, but you can’t buy the US e-book edition? Why do online retailers pay attention to your address and credit card when assessing your eligibility to buy an e-book, while being willing to ship any edition of any print book anywhere?

The answer is a little arcane, but bear with me. The fact of the matter is that, when it comes to traditional printed books, neither the retail booksellers nor their customers (that’s you) are party to the contracts between John and his various publishers. Our contract with John says that _we_ won’t sell our editions of his book outside the territories in which John grants us exclusive and non-exclusive rights. Gollancz’s contract with John says that _they_ won’t sell their editions of his book outside the territories in which John grants them exclusive and non-exclusive rights. But if Amazon buys a bunch of copies in the US and someone in South Africa says “Hi, here’s my credit card, send me one,” no contractual agreement has been violated. Amazon owns those books, not us. They can do what they want with them, including selling them to people in South Africa, Shropshire, or the moons of Jupiter. Amazon is not John Scalzi, Tor, or Gollancz. You are not John Scalzi, Tor, or Gollancz.

One small quibble with Patrick's otherwise excellent explanation: there are, in fact, some international restrictions on what's called "parallel importation" or "grey market selling," where a retailer imports goods intended for sale in country X and offers them for sale in country Y. Recent trade treaties (especially ACTA and TPP) have attempted to strengthen these restrictions, and an apocalyptically stupid Ninth Circuit Court of Appeals Decision has further eroded this practice.

The entertainment industry's representatives deliberately blur the lines between counterfeiting, infringement and parallel importation. When you hear that ACTA is a treaty intended to fight "counterfeiting," you probably don't think that the "counterfeit" jewelry, DVDs, books, and perfume under discussion is the actual, bona fide item, manufactured for sale in poor countries and imported without permission to a rich country. Most of us understand that a "counterfeit Omega watch" is a fake Omega watch, not a real Omega watch that was manufactured for sale in India and then imported to the USA.

The white-hot center of this stupidity is the watch trade. For example, "genuine Rolex products can only be imported with the permission of the trademark owner, Rolex Watch U.S.A. Inc. A private individual can hand carry one Rolex watch from a trip overseas without obtaining permission. Bring in more than one, and they will all be seized as a trademark violation. Purchasing a Rolex from overseas by mail is also a trademark violation."

Why is the ebook version not made available worldwide considering there are no physical constraints that may apply for the hardcopy version?" (via Making Light)

(Image: International currency, a Creative Commons Attribution Share-Alike (2.0) image from 53936799@N05's photostream)


    1. Intellectual property has got to be one of the oddest concepts we’ve yet come up with as a species.

      1. No weirder than real property, the idea that you can own exclusive rights to a piece of the planet.

  1. So Rolex is pricing its watches as high as the market will bear, but since that’s a lower price point in India than in the U.S. or Europe, they call it a “trademark violation” to import more than one Rolex at a time from India?

    Bogus. Rolex can’t infringe its own trademark. That’s a gross misuse of trademark regulations to enforce restraint of trade.

    1.  Rolex has created an arm’s length sister company, Rolex USA, that controls the trademark in the US territory. Technically, Rolex USA is a competitor of Rolex India, and they both have a license to the trademark from Rolex International (which conveniently charges them 100% of their profits for the license, meaning they return the same revenue they would if they were subsidiaries, but are technically not subsidiaries). In the USA, Rolex USA has exclusive rights to the mark, so a Rolex India watch (identical in every other fashion, and ultimately licensed by the same originator as the Rolex USA pieces) is infringing in the USA.

      I know, right?

  2. I see this kind of nonsense in almost every major line of business. People have to follow stupid restrictions because that’s how the contracts are all written, and nobody wants to get sued for breach of contract or anything else.

    There’s a really simple solution to this, but I have never personally seen it happen. Next time you go to make a contract, do it completely differently from how it has been done in the past. It’s that simple. If you are going to sell your rights, sell the rights for the entire world, in all languages to one entity. Tada!

    Better yet, don’t sell your rights to anyone ever. If it’s profitable for them to sell your book and also buy the rights from you, then you can make even more money if you do it yourself. Sure, they might provide services like translation, marketing, printing, distribution, etc. So hire a translator yourself. Hire an advertising/PR firm. Go to a print shop. They won’t take a cut based on sales, or your rights. They’ll take a flat fee for their services. Then just sell your work directly to all the people of the world simultaneously.

    People always crying that things suck because one industry or another “works a certain way.” It’s not like the law of gravity. They are just rules on paper written by humans. They don’t really exist. We can break every one of those rules. If you don’t like how something works, then stop doing it that same way. Simple as that. If you keep doing business as usual, you don’t have a leg to stand on.

    1. Let’s say hypothetical company BIG offers me $800,000 for exclusive rights to distribute your book worldwide, in all media. But they don’t really distribute physical books in Africa.

      Then let’s say company CW offers me $210,000 for exclusive rights for Commonwealth and former Commonwealth countries, and LEFTOVERS offers me $650,000 for exclusive rights for the world other than those countries — but they don’t actually distribute in South America.

      So if I sell to BIG, I make $800K. My book is available everywhere but Africa, and Scott Rubin is happy.

      If I sell to CW and LEFTOVERS, I make $860K, and my book isn’t available in South America.

      Sorry, Scott.

      I realize the numbers are totally made up, but the forces described above and in the referred post do show why publishers may pay more for “their” territories — they have infrastructure in place not only for shipping and remaindering, but also billing.

  3. While this is all true and I pretty much agree with it, and 100% in relation to intellectual property, it should be pointed out that there are often very good reasons that smaller countries would want to restrict free trade agreements with larger ones. A larger country has a larger population and therefore some of its industries are simply able, economically, to produce goods for a cheaper price than the smaller country’s local industries can. So free trade can destroy entire areas of local industry which simply can’t compete with the influx of cheaper products from overseas.

    There are a lot of bogus arguments that try and push this line, though. For instance I’m not sure what I believe about  the Australian publishing industry’s line that local shops being able to sell overseas books will hurt local authors – the argument being that if Australian publishers can’t make money from (re-)selling overseas books then they can’t fund the local stuff.
    It’s true that the local book business can’t compete against big overseas business, and maybe that means they shouldn’t. I’m not convinced that the local music business (which I am part of as an independent artist) was damaged by parallel importation – or at least, not the bits of it I care about.

    But I do think it should be noted that “free trade” is not always of benefit for everybody, and when it’s not, it’s the little(r) guys who will always lose out.

  4. Such a load of crap. Businesses whine about government getting all up in their trees and impeding trade with too much regulation, but they apparently have no problem using it to their advantage when they feel like it to line their pocks and hurt the consumer.  This model is broken in a digital age. Something needs to change or it will all come tumbling down.

    1. Businesses (or more to the point, the exceutives who run buisinesses) whine about anything that costs them money, and are perfectly happy with things that help them make money.  Any time I hear a business complain about “undue burden of regulation” or “wasteful government spending”, if I scratch the surface of their business model I find a whole host of regulations and government spending that help them that, of course, they aren’t talking about.

      Once you realize that you should apply as much skepticism to anything a business spokesperson says as you do to anything a government spokesperson says, you’ll find that the world makes a helluva lot more sense.  If you assume that most people in positions of power are trying to maximize their power (and by extension money is power, so…) the world makes even more sense.  And if you start to treat corporations as if they were tiny feudal kingdoms ruled by barons, with money and lawyers replacing territory and armies, the whole thing makes so much sense it makes you want to cry, move to the mountains and become a hermit…

  5. I wouldn’t go so far as to call the court apocalyptically stupid, but the 2nd circuit (the “other” big non-patent IP circuit – think NY publishing v. the 9th circuit’s Hollywood) last year claimed that first sale rights don’t exist on books manufactured outside of the U.S.

    First sale is why U.S. libraries don’t need a license to lend books and why you can resell your old textbook to a new buyer without cutting the publisher in. In fact, the case was about just that – reimportation of textbooks from south Asia to the U.S.
    John Wiley & Sons, Inc. v. Kirtsaeng, 654 F.3d 210, 2011 Copr.L.Dec. P 30,126, 99 U.S.P.Q.2d 1641 (2nd Cir.(N.Y.) Aug 15, 2011) (NO. 09-4896-CV).

    The Supreme Court of the U.S. has granted cert and will review this next term (starting in October, decision by June 2013).

  6. “Most of us understand that a “counterfeit Omega watch” is a fake Omega watch, not a real Omega watch that was manufactured for sale in India and then imported to the USA.”

    And this is why DVD zones were put in place, tho the basis for said zones were the different broadcast standards used around the world.

    But this is overlooking the continually growing market of secondary english capable. For instance, i am Norwegian by birth but have no trouble following a British or US movie or series without subtitles. Never mind that some times the official subtitles are laughably bad.

  7. As someone living in one of those Commonwealth countries I’m glad this is getting some attention. It really is the most aggravating thing about owning an eBook reader in this country, far more irritating on a day to day level than DRM.

    For example when Cory makes a blog post saying that we can buy “For the win” or “Little Brother” Kindle edition DRM free from Amazon. We follow the link, and find out we can’t buy it because of our geographic location (and still can’t buy either of those to this day).

    I’m sure he and other authors don’t mean to exclude us intentionally, and it is very likely to not be entirely in their control. But that doesn’t make it any less frustrating for those of us trying to keep our library “paper free”, and normally just results in me boycotting buying or reading the book until they’ll sell me an electronic version.

  8. If I were a novelist, I’d consider doing a scene about a guy meeting another guy at the airport to pick up the rolex he wore across the border, as a way of offsetting some travel costs. Hero would be someone like tynan of tynan.com, who is a budget minded frequent flyer.

  9. I think the idea behind the watch restrictions is that people in India who are absurdly rich by Indian standards but not by American standards have the right to own meaningless pretentious items for less than Americans would have to pay.

    If Rolex had to charge the same amount all over the world, the lower ranks of Indian snobs would have to find some other means of conspicuous consumption. This might seem trivial but similar policies might also enable Indian consumers to save money on things that I don’t personally find absurd.

  10. The most absurd country restriction hurdle i ever went through was when i discovered that i can’t get Books I and II of JK Parker’s Engineer Trilogy in my country, but they’re perfectly happy to sell me Book III (which is useless to me, having not read Books I and II).

  11. A good explanation for a change, not just the usual ‘evil publisher’ rant you see on the internet (not from Cory). I would think it makes sense for a publisher who has the rights to the physical book would also want to convert and distribute the digital version as thay already hold the content. So it is unsurprising that they demand both rights. 
    Authors and agents are obviously interested in maximising the return and if that means splitting the rights they will do so.
    The big difference between physical and digital is the method of delivery. Once you have a bunch of hard copies you can sell them anywhere. Unless the download files are DRM free you can not (legally) sell them on. Also to sell a bunch of hard copies you have to buy them all. For digital you only have to buy once and sell many times thus robbing the Author, Agent and Publisher of their income.  

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