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With ‘agency lite’ and the primacy of national laws over those of the EU, the European Commission’s recent settlements with publishers is hardly the death knell of the agency model, argues Philip Jones. Yet with a maturing digital market, does it even matter?
THE ARRANGEMENTS agreed to by four publishers, Apple and the European Commission, following the EC’s investigation into collusion over fixed pricing, will weaken the agency agreement—at least in its purest form—but will they destroy such agreements entirely? Te commitments made by Hachette Livre, HarperCollins, Macmillan, and Simon & Schuster in Europe mean they will not be able to prevent e-booksellers from discounting digital books for two years, and cannot enforce any Most Favoured Nation (MFN) clause for five years. But the agreements contain important caveats that could see
8 THE BOOKSELLER DAILY AT FRANKFURT | 10 OCTOBER 2012
agency live on: assuming they can negotiate new “agency lite” deals, the level of discounting done by any retailer (say, for example, Amazon) cannot exceed the aggregate value of the commissions the publisher pays to that retailer over a 12-month period. Tis clause mirrors that seen in the US earlier this year, between Hachette Book Group USA, HarperCollins US, Simon & Schuster Inc and the Department of Justice, with many commentators over there questioning how such an arrangement would be policed. Te EC said it “would monitor
compliance with these commitments”, though it did not say