Editor's Note: Beginning with this issue of the "PMA Newsletter," Jonathan Kirsch, general counsel
of PMA and a specialist in publishing law, will discuss recent developments in publishing law and answer legal
questions from PMA members. You may send your questions to the PMA office or directly to Jonathan Kirsch at email@example.com. Thanks to the ongoing revolution in printing
and publishing technologies, some of the standard clauses in book contracts are no longer fully functional and
others may be regarded as obsolete. One such provision is the so-called "out-of-print" clause, which
generally provides that the publisher's right to print and sell a book comes to an end when the book goes out of
print. However, most out-of-print clauses in common use do not adequately address the emerging technology of
"print-on-demand" publishing, and a publisher who relies on an outdated contract faces the risk of losing
the right to sell the author's book through print-on-demand channels when the book goes out-of-print in
What Is "Print-on-Demand" Publishing?
Print-on-demand publishing is a promising new form of book publishing that allows the publisher to make single-copy
sales of a book to a consumer through a bookstore, a publisher's catalogue, or an on-line service. The contents
of the book are printed out and bound, and the finished product is handed or mailed to the consumer only at the time
of purchase. The book may be transmitted in digital form by modem from the publisher's database to a retail
outlet, where it is printed out and bound on special equipment, or else the book might be manufactured and mailed
from a central location. But, either way, the publisher need not print or ship the book in commercial quantities,
maintain an inventory of printed books, or accept returns of unsold books! Although print-on-demand publishing is
still in its infancy, the advantages to publisher and consumer alike are so compelling that it promises to become an
increasingly important part of the publishing industry.
Is a "Print-on-Demand" Book an Electronic or Print Product?
Most book contracts do not squarely address and define "print-on-demand" publishing as a specific right.
Arguably, it is a hybrid of both print and electronic publishing, since it begins with a digital file on an
electronic database and ends with a printed book. If the publisher is acquiring all rights in the author's
work-or if the publisher is acquiring both print and electronic rights-then the right to sell the author's work
through print-on-demand channels is probably included in the grant of rights. But any publisher who is relying on an
older contract that does not specifically mention print-on-demand rights ought to take a fresh look at the contract
to make sure that print-on-demand rights are secured from the author in the "grant of rights" clause.
When and How a Publisher Might Lose"Print-on-Demand" Rights
Even if the publisher acquires the right to issue a book both in conventional print editions and through
"print-on-demand" channels, a problem may arise if the publisher allows the book to go out of print in all
print editions and sells the book only through print-on-demand. Under these circumstances, the publisher who relies
on an old and obsolete publishing contract may lose the right to sell single copies of the book as a print-on-demand
product. The out-of-print clause in most book contracts defines when a book is regarded as no longer "in
print," and what happens when a book goes out of print. Most such clauses permit the publisher to put a new
edition back into print within a specified period of time-and, thus, to keep the contract in full force and
effect-but if the publisher declines or fails to do so, then the rights originally granted to the publisher under
the book contract will usually revert to the author. (That's why the out-of-print clause is sometimes called a
"reversionary clause.") At that point, the publisher will no longer be permitted to print, publish and
sell copies of the author's book. Most out-of-print clauses in common use in the publishing industry define when
a book is "in" or "out" of print in terms that relate to conventional print editions, if the
contract defines the terms at all: "The Work shall not be deemed out of print so long as the Work is available
for sale either for stock in Publisher's, distributor's or licensee's warehouse, or in regular sales
channel," according to one commonly-used clause. But the old definitions of "out of print" simply do
not apply to the new print-on-demand technologies that are beginning to emerge in the publishing industry. Thus, if
the publisher allows the book to go out of print in the old-fashioned sense, there is a distinct risk that all
rights in the author's work will revert to the author, and then the publisher will not be entitled to continue
to sell the book through print-on-demand channels.
A Sample "Out-of-Print" Definition for the Computer Age
To solve the problem, the out-of-print clause must be revised and redrafted to avoid any ambiguity about the rights
of the publisher under these circumstances. Here is a sample out-of-print definition that I have begun to use on
behalf of publishers in order to preserve print-on-demand rights even if the book is no longer published in
conventional book formats: The Work shall not be deemed out of print within the meaning of this section so long as
the Work is available for sale either (a) from stock in Publisher's, distributor's, or licensee's
warehouse, or in regular sales channels, and/or (b) by single-copy sales through "print-on-demand"
channels. Be forewarned, however, that authors and agents may balk at a definition of "out of print" that
permits the publisher to own and control the rights in a book indefinitely, even though it may sell only a few
copies through print-on-demand channels. Some authors and agents may seek to exclude single-copy sales through
print-on-demand channels from the definition of when a book remains in print, or else they may ask for a clause to
require a minimum number of sales or a minimum royalty payment to keep a book publishing contract in effect even
though the book is sold only through print-on-demand channels. That's exactly why the out-of-print clause is no
longer mere "boilerplate" and is often the focus of heated negotiation between authors and publishers in
the Computer Age!