ARC of the Covenant

In author land this week, the big news was the revelation that some book reviewers were selling ARCs – Advance Review Copies – of books they’ve received for review.

One on particular forum, the discussion got heated between those who saw no issue with the practice as those who most certainly had a problem with it (mostly authors).

A 1987 copy of Australian band Pseudo Echo’s extended mix album and a 20th Century Review tape of The X-Files from 1995.
Both are from Elizabeth Ellen Carter’s personal collection and given to her and her husband as review copies at the time.

Others said they would not ‘take sides’ on this issue and the suggestion was made that a publishing expert or a legal expert weigh in on this topic.

Well, I’m not a legal expert, but I am a publishing expert, having been a professional writer from the age of 17, when I was a journalist with one of the largest newspapers in Australia, and a marketing and communications specialist in the second half of my working life.

As a newspaper journalist I received, as did my journalist husband before me, ARCs of many different types – books, albums, and TV shows. Most of them had a sticker which had variations on the following message:

For review purposes only, not for resale.

As you can see from the sticker on the Pseudo Echo album, all rights are exclusively reserved by Thorn EMI.

Journalists who received review copies did so on the understanding – a contract, if you like – that the conditions were to be met.

And in my experience, journalists (who could rarely be trusted with anything else) for the most part, abided by that contract.

Yes, my husband (who was entertainment editor for that same newspaper) did become aware of reporters selling review copies of albums and books from time to time. When that happened, the reporter was barred from being part of the review team.

These days, thanks to the internet, the opportunity to be part of a review team is no longer dependent on being employed as a journalist.

Participants in social media are, ipso facto, in the media – bloggers, Instagrammers, Amazon Vine Reviewers etc, etc – all have the same responsibilities my husband and I did in the 1980s and the 1990s.

But unlike journalists, who are notionally bound by a code of ethics established by their union and could face the sanction of their editor and employer for breaches, today’s 21^st century social media reviewers have only the restraints of their own ethic.

And as we know from human experience, a person’s ethics are shaped (or warped) through internal justifications used to salve a guilty conscience – but that’s a topic for another time…

So, let’s get back to it. Are disclaimers like the one above legally enforceable?

I’m not a lawyer, but to the best of my knowledge (and the recent research I’ve done), the answer is ‘no’ – not prima facie in a legal sense.

However…

There are two things to consider:

• To accept an ARC is to enter a contract with the copyright holder
• Just became something is not illegal, doesn’t mean it is ethical to do it

Let’s examine these two points in greater detail.

Entering a contract
The first part of the contract is an author saying the following:

I will provide my book for free, in exchange for the book to be read and an honest review left (on a blog, on an etailer’s site, on Goodreads, etc, etc).

The second part of the contract is a reviewer raising a metaphorical hand and saying:

I will read your book and leave an honest review.

Some reviewers will add a clause stating that they will not make public a review that is less than three-stars and, in that instance, they will contact the author privately with the substance of that critical review.

Then the author, if she is wise, will remind the reviewer that the copyright for the work is hers and the further condition is that the review copy is not on-sold.

And therefore, in that email or social media exchange, a contract as been entered into despite no pen being put to paper and no signatures witnessed.

But it is, nonetheless, a contract.

In Australia, and I’m sure it happens in other countries, that when you walk into a shop with a bag, you may be asked to open your bag on exit to make sure there are no shoplifted items inside.

You may not have signed a contract at the front door, but you will have seen a sign stating that a bag stop is a condition of entry. Find Law describes it like this:

A customer enters a store under licence and retailers are able to search any bags, containers, parcels, or other items that may potentially be used to shoplift, however, retailers must display a prominent sign at the entrance stating that a condition upon entering the store, is the intention to check bags.

When a bag search is conducted no items are allowed to be touched with the retailer only able to look at the contents inside the bag. Customers do have the right to refuse to have their bag searched, but since a customer enters a store under licence, the retailer also has the right to ask a person to leave, therefore revoking the licence.

The provision of an ARC and its obligations can be understood in the same light.

Just like legal copyright enforcement, prosecuting individual breaches of contract is too expensive and time consuming for authors. But let’s not mince words: to sell an ARC is to breach a contract. It’s a form of petty theft.

Yes, it is unlikely that a SWAT team is going to break down your door in the middle of the night and arrest you for it, but then people get away with pilfering every day, too. It doesn’t mean it’s right.

Legal vs Moral
The truth of the matter is, unless you’re JK Rowling, an author does not have the resources to enforce breaches

Even if it weren’t, a reviewer has either given their word or accepted the free book under those provisos.

But it is mine, so I can do what I want with it!

Those reviewers who see nothing wrong in selling ARCs miss the point. Reviewers receive a book under specific conditions, one of them being that it is not to be sold.

This is not like receiving a book in a giveaway (a gift without obligations). Even under those circumstances, the copyright is enforceable – you may have received your one copy for free but that doesn’t mean you can start reproducing and selling multiple copies of it.

And this is exactly the case when it is electronic ARCs we’re talking about.

PDFs, .mobi and .epub files are endlessly sharable. The distribution of those files unambiguously eats into an author’s sales.

Let me tell you, there is nothing more dispiriting to see your new title being given away for free on a bit torrent site or made available for sale on unauthorised channels where you will not see a penny in royalties.

Abuse the trust and…

Reviews and reviewing exists in a spirit of trust.

We trust that you like our book, we trust that you will review it in the spirit of open and honest opinion, we trust that you will review as you say you will, we trust that you respect our work enough to respect the spirit of the exchange.

Let’s list the consequences for both author and reviewer if that trust is breached:

• One book given away by a third party is one sale an author does not receive for her work
• An ARC may not be a final version and thereby not a true representative of the publisher’s final standard or the author’s best work . Selling that advanced copy damages the reputation of publisher and author.
• A reviewer who becomes known for selling ARCs will find themselves banned from receiving ARCs from not just one, but many, many authors (we do talk to one another, you know)
• ARC reviewers who consistently breach their duty of trust (their contract) with the author/publisher, will make it impossible for authors and publishers to trust social media reviewers who may then limit review copies to verified bloggers and mainstream media outlets.

Are there any more consequences you can think of that I’ve not listed? Let me know in comments below.

 Great question!

• If you’ve received an electronic ARC and you don’t intend to keep it, DO NOT SELL IT! Just delete it from your device.
• If you’ve received a print ARC and you don’t intend to keep it, DO NOT SELL IT! Offer it to a friend or a family member. Who knows? They may like it and leave a review.
• If you have no friends who are interested in the book, DO NOT SELL IT! Give it to your local Op Shop/Thrift Store. If the author is not going to make money from a sale, at least give a charity a shot.
• If the print ARC is poorly edited or incomplete (I’ve received ARCs without covers before now), DO NOT SELL IT! If it is not fit for purpose, then put the paper in for recycling.