In traditional publishing, a book goes “out of print” when the publisher is no longer producing new copies of the work and the existing sales stock falls below a point where retailers can order more copies for sale.
When publishing focused exclusively on printed works, “out of print” status was easy to recognize – the publisher wasn’t printing more and the book disappeared from bookstore shelves. Contracts established “out of print” status by reference to printing schedules, publisher inventory or “availability for sale.”
E-books have changed the playing field where “out of print” status is concerned. Contract clauses defining when a book goes “out of print” need to distinguish between printed copies and e-book availability. Otherwise, the author’s work may never go out of print. Under the traditional language, a publisher can offer an e-book version of the author’s work for sale on the publisher’s own website and keep the book “in print” indefinitely.
Better language for modern contracts distinguishes between print availability and e-books. The author may also want to request a clause which states that availability only on the publisher’s own website (or websites controlled by the Publisher) is not sufficient to keep an otherwise out of print work “in print” for purposes of keeping a contract alive.
As with everything else, however, this language requires discretion. Small publishers which only intend to produce an e-book and/or which sell primarily through their own websites won’t be able to grant this language – meaning the author will need to find another creative way to distinguish when the work goes out of print. As always, the advice and assistance of an experienced professional is key – if you have any questions, don’t try to go it alone!