The New French Legislation: Further Points
This is a follow-up to my post France Guillotines Copyright, about the new French law which has curtailed authors’ rights to out-of-print twentieth-century books.
Journalist Delfeil de Ton, writing in Le Nouvel Observateur, describes the law as A magnificent con trick ('Truanderie magnifique'). He blames it on the Union pour un Mouvement Populaire (UMP), the party of Nicolas Sarkozy. The promoters of the law secured the agreement of all the French political parties, but in both houses of the French Parliament the bill was introduced by members of the UMP. French travel writer Patrice Favaro also blames the UMP for the law. He notes that France is in an election year. (Sarkozy is up for election next month, and elections for the National Assembly will be held in June.) Favaro calls for authors to mobilise and use the election to make their views heard.
French science fiction author Lucie Chenu has delivered an incisive response to some of the points made by the Société des Gens de Lettres (SGDL) in their response to critics of the new legislation. She notes that some of the statements made in the SGDL paper are incorrect and do not reflect the law as enacted. These errors are serious. For example, the SGDL claim that if an author has recovered the print publication rights to a book he/she will keep 100% of the royalties arising from its exploitation by the collective management organisation if he/she leaves the book within the scheme. ('Si l'auteur a récupéré ses droits pour l'exploitation « papier » il récupère 100% des droits d'auteur issus de l'exploitation de l'ouvrage par la société de gestion collective, s'il choisit de rester dans le dispositif.') But as Lucie Chenu points out, there is absolutely nothing in the law to say this. The law says that the share of this money received by the author must not be less than the share received by the publisher. ('Le montant des sommes perçues par le ou les auteurs du livre ne peut être inférieur au montant des sommes perçues par l'éditeur'.) Nothing else. The long and the short of the matter is that the various assurances and explanations offered by the SGDL are not to be relied on, since they cannot even get the letter of the law straight.
Lucie Chenu is one of the originators of the petition of French authors against the law, mentioned in my previous post. In a comment on a blog post about the law on the Science Fiction and Fantasy Writers of America website she says that foreign authors are welcome to sign it and to leave a comment. The petition is entitled Le droit d'auteur doit rester inaliénable (The right of the author must remain inalienable).
Another of the authors behind the petition, Yal Ayerdhal, is reported on the French news website News89 as saying that the arrival of the previously unavailable works under the new law 'will destabilize the book market and small publishing businesses are going to find themselves overwhelmed by the big ones'. ('L'arrivée des livres indisponibles va déstabiliser le marché du livre et le travail des petits éditeurs va se retrouver noyé par celui des gros.')
Ayerdhal also notes that Amazon offers authors who contract with it to publish their own books royalties of 70% on a price that the authors set themselves.
News89 reports that the digitisation of the books is to be funded by a government loan. Some information about this may be found in the secret agreement that was signed last year by the SGDL, the French publishers' organisation (Syndicat National de l'Édition), the Bibliothèque nationale de France (National Library of France) and the Minister of Culture. This agreement specifies that before any money is paid out to authors and other rights holders by the collective management company that operates the scheme, the capital invested is to be paid back, as are the expenses of operating the scheme. ('Les produits de l'exploitation des livres, une fois prélevés les montants affectés aux frais de gestion et à la rémunération des capitaux investis, reviendront équitablement aux ayants droit via la société de gestion collective.')
In a standard publishing contract the author is paid an advance against royalties, and if the book earns out its advance, royalties are paid as a percentage of the price for which the book retails. The publishing company expects to repay its investment out of its share of the retail price. Under the new French scheme, the initial investment in digitising the books is to be recouped before the authors see a penny. If they ever do…
Then there are the expenses of operating the scheme. One of the reasons why any form of collective scheme for managing primary publishing rights is bound to offer a poor prospect for authors is that the authors will only be paid out of the money that remains once the publishers' share has been sliced off and the collective management organisation has awarded itself whatever it has run up by way of operating costs. These operating costs, it may be noted, will include expenses that would normally be absorbed by the publishers, such as the costs of contacting authors and estates and administering individual author accounts.
Under this particular scheme the responsibilities of the cmo will also include settling any disputes over the ownership of digital rights, and since the law, in defiance of a basic principle of the French Intellectual Property Code, has placed the burden of proof on the author, it is likely that disputes will be plentiful.
Further information: web pages in English
Further information: web pages in French
Oeuvres indisponibles : les assurances du ministère, un miroir aux alouettes – Lucie Chenu in Actualitté
Numérisation des livres qu'on n'édite plus: qui y gagne? – Aurélie Champagne in Rue89
Truanderie magnifique – Delfeil de Ton in Le Nouvel Observateur
Cette loi bouleverse le système du droit d'auteur dans ses principes – Benoit Huret, advocate
Loi relative à l'exploitation numérique des livres indisponibles – Philippe Schmitt, advocate
(For more links, see my previous post.)