how. With the agency commission fixed at 30% it would not be impossible for a third party to do so, though it would involve constant vigilance over Amazon’s prices and access to the sales data. A second caveat comes from
Apple’s commitment to not enforce a retail price MFN clause for a period of five years. It means that those smaller publishers who have signed on with Apple, but not been able to enforce similar terms with Amazon, can breathe again. Apple has not yet sued a UK publisher for failing to match an Amazon non-agency price, on its agency policed iBooks, but it could have. For example, Pan Macmillan’s Ash, the 20p e-book from James Herbert, was priced at £9.49 on the Apple iBookstore, as this piece went to press. A third caveat, comes from the EC’s
admission that the “commitments are without prejudice to national laws”, if they allow resale price maintenance on e-books (as France does). It means that if publishers in the EU really want to hold a firm line on the price e-books can be sold at, they could do so another way. Tose settling publishers could be
forgiven for seeing the commitments as the least worst option. Tey evade any fines, can ride the e-book waves for two years, before rekindling their original agency agreements (bar MFN). Whether Amazon will then agree to accede control over prices again is another matter. But those publishers might also be hoping that a more mature e-book market has developed by then, with players such as Barnes & Noble, Kobo, Sony, Apple and perhaps even Google having captured some market share from the big one.
Curious and curiouser Along with the caveats there are one or two curiosities worth noting. First, in France only Hachette has been forced into making any “commitments” despite Gallimard/ Flammarion, La Martinière and Albin Michel’s offices also having been raided 18 months ago. Second, in the US the publishers
and Apple are charged with having “conspired to raise retail prices of e-books”, though none admit guilt. In Europe, the commission does not even go that far, calling its judgment “preliminary” and indicating that even if it does become legally binding, it does not mean there has been “an
agency is dead; dazed and confused, it may yet return. What’s more likely, however, is that the e-book market will simply develop in a less damaging way”
infringement of EU anti-trust rules”. Most curious though is that the
commission has failed to conclude its own inquiry. Te commission’s original investigation was into the “character and terms of the agency agreements entered into”, but it appears to have come to no conclusions on that. Fixed prices and MFN are removed temporarily, but not completely done away with. As one exasperated competition
lawyer I spoke to put it, no one is accepting liability, and the question of whether true agency is legal or not remains moot. None of this means that agency is
dead; dazed and confused, it may yet return. What’s more likely, however, is that the e-book market will simply develop in a less damaging way. Agency was an attempt to arrest e-book growth, and also to prevent e-book sales undermining physical sales in the short term; the closer the e-book market gets to tipping point, the less this is an issue.
None of this means that
Ingram’s inventory of physical and digital content and related products is the largest in the industry.
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