Last Thursday (23rd February) the French Parliament ratified a law 'relating to the digitization of commercially unavailable books of the twentieth-century'.
[Loi relative à l'exploitation numérique des livres indisponibles du XXe siècle].
A petition against the law, signed by many French authors and illustrators, asserts that it 'does nothing other than institute an official and general piracy of literary works of the twentieth century in the form of an unprecedented infringement of the right to property' ('cette loi … ne fait qu'instituer un piratage officiel et général des oeuvres littéraires du XXe siècle sous la forme d'une atteinte sans précédent au droit de propriété').
The law has been promoted by its supporters as a means to enable public access to literary works of the twentieth century that are still under copyright but no longer commercially available. ['The objective of the act [consists] in allowing the public to access works that are currently unavailable' ('l'objectif de la loi consistant à permettre au public d'accéder aux oeuvres actuellement indisponibles') – Senator Jacques Legendre, introducing the bill in the French Senate, 21 October 2011]
When the detail of the Act is studied, it becomes clear that what it has actually effected is a transfer of rights on a vast scale from authors and literary estates to publishers.
More on this below. First, since there is still only very limited information in English about the details of the new French law, here is a summary of the main points as as I understand them.
Note: what follows is not a direct translation but a paraphrased summary. It is offered with no guarantees. I am not a lawyer, nor am I a professional translator of French legal and business documents. I am open to correction from anyone better qualified than I to interpret this document and its context.
'Loi relative à l'exploitation numérique des livres indisponibles du XXe siècle': summary
The Bibliothèque Nationale de France (equivalent of the British Library) is to compile a freely accessible online database of all works published in France before 1 January 2001 that are not being commercially distributed by a publisher and are not currently published in print or digital form.
Anyone who discovers that a book in this category has been left out of the database may apply to have it added.
A book's being registered in the database does not prejudice the application of articles L. 132 12 and L. 132 17 [of the French Intellectual Property Code]. [I think this means that the legal test of whether a book is available will continue to be the principles set out in the articles cited (see the text behind the link for details)].
Once a book has been listed in the database for more than six months, the right to authorize its reproduction and display in digital form ('sa reproduction et sa représentation sous une forme numérique') will be transferred to a collective management organisation (hereafter abbreviated to cmo) approved by the Minister of Culture.
Approved cmos must represent both authors and publishers, and authors and publishers will be equally represented on the governing bodies.
These cmos will have legal powers to take action in defence of the rights assigned to them. They will be responsible for the equitable distribution of the sums they collect to the rights holders. The amount paid to the author[s] of a book must not be less than the amount paid to the publisher. The cmos will be obliged to make an effort to find and pay as many rights holders as possible, and to negotiate as many publishing contracts for these works as possible with the aim of making them available. They are also charged with protecting the 'legitimate interests' of the rights holders who are not parties to the publishing contract.
The author of a commercially unavailable book or the publisher who has publishing rights to a print edition may object to the transfer to the cmo of the right to authorize its reproduction and display in digital form. Such an objection must be made in writing and sent to the cmo within six months after the book has been included in the database. Any such objection is to be recorded in the database.
Once the six months is past, the author may still arrange to have the book removed from the control of the cmo if he judges its reproduction or display to be prejudicial to his honour or reputation. No compensation will be paid in such cases.
A publisher who puts in an objection to a book's passing into the control of the cmo must bring out an edition within two years and prove to the cmo that he has done this. If he defaults the objection is to be deleted from the database and the right of authorizing publication in digital form will be exercised by the cmo.
If no objection is raised by author or publisher within six months of the work's being registered in the database, the cmo will offer to a publisher who has the rights to reproduce the book in printed form a licence to reproduce and display it in digital form. The offer is to be made in writing. It will be considered to have been declined if the publisher fails to reply in writing within two months. The licence is to be issued on an exclusive basis for a period of ten years, implicitly ('tacitement') renewable. The publisher's acceptance of the offer is to be registered in the database.
The author can oppose this by bringing proof that the publisher does not have the right to publish the book in printed form. Otherwise the publisher has three years to bring out a digital edition of the book and prove to the cmo that he has done this.
If the publisher does not take up the offer, or fails to bring out a digital edition within the time specified, the cmo is empowered, in return for payment, to issue a non-exclusive licence for the publication of the work in digital form for five years, renewable.
Anyone granted a licence to publish a work under these conditions will be subject to the law on ebook pricing of 26 May 2011 [under which the price of digital editions must be fixed by the publisher, with no discounting permitted].
The author and the publisher who holds the right to publish the work in printed form may at any time jointly notify the cmo of their decision to withdraw from it the right to authorize its publication in digital form. In such a case the publisher then has eighteen months to bring out a digital edition and prove to the cmo that he has done this.
The author of a commercially unavailable book, acting alone, may at any time withdraw from the cmo the right to authorize its publication in digital form if he is able to prove to the cmo that he is the sole holder of the rights defined in article L. 134-3. [The rights mentioned in article L. 134-3 are the rights to authorise a book's reproduction and representation in a digital form.]
The cmo must inform all users to whom it has granted a licence to exploit the book of these decisions. The holders of the rights cannot oppose the continued exploitation of the book under an arrangement that has been entered into before they notified the cmo, up to a maximum duration of five years, on a non-exclusive basis.
Regulations governing aspects of these measures are to be specified in a decree in the Council of State.
The law anticipates that there will be some books for which no one will be found who has the right to reproduce them in printed form. After ten years, the cmo shall authorise libraries that are open to the public to reproduce and distribute any such books in their collections free of charge, unless there is a reason to refuse this. This is subject to the requirement that the institution that benefits from this provision shall not seek to obtain any economic or commercial advantage from it.
Anyone who holds the right to reproduce the book in printed form may obtain at any time from the CMO the immediate withdrawal of this free licence.
In the case of the sums of money that the cmos are unable to distribute because they cannot find the recipients, after ten years they shall devote them to projects for assisting creativity, for teaching authors to write, and for organising public readings, to be implemented by the libraries. The sums involved and the purposes to which they have been put shall be the subject of an annual report from the cmos to the Minister of Culture.
The organisations representing authors, publishers, booksellers and printers shall engage to consult on the economic and legal questions relating to the printing of books on demand.
The law is to come into force at latest six months after the act is enacted.
The law has nothing to say about the rights of illustrators.
No account is taken of edited collections by multiple authors.
Nothing is said in this law about translated works, or how foreign authors, in particular, may safeguard their rights.
Any author who has had work, or translations of their work, published in France in book form prior to the cut-off date (1 January 2001) would be well advised to consult their agent, or authors' organization, or a suitably qualified lawyer. The timescale for getting a handle on all this is not very long.
As may be seen from the above, what this legislation has achieved is to hand the publisher of the print edition the digital rights to any out-of-print twentieth-century French book that they think might make them money in a digital edition. These are, of course, rights that almost invariably belong to the author/estate.
Commentators have noted that the six months window within which authors can claim their books and have them removed from the database is extremely narrow; also, of course, authors will receive no warning at the point their book is listed. The system might as well have been calculated to cause anxiety, time-wasting and error on the part of the authors.
authors will receive no warning at the point their book is listed – The Société des Gens de Lettres (SGDL) [French equivalent to the Society of Authors], one of the principal promoters of the Act, has issued a paper that clarifies some aspects of this legislation and offers certain reassurances. The SGDL is promising that publishers and authors' organisations will have an obligation to notify the affected authors. The society seems to be implying that this will be laid down in the regulations that will govern the operation of the scheme. [See SGDL paper, answers to questions, no. 5.] French authors' organisations, however, are hardly going to be in a position to alert foreign authors. (And it may be noted that they are taking upon themselves a very considerable burden in undertaking to monitor the register on behalf of their own membership.) Obvious questions of liability arise: what if a publisher is negligent and fails to make a proper effort to contact the author within the short window of time available? And what will be the position if a translated work has been issued under a sublicence from a foreign publisher rather than as a result of a direct negotiation with the author?
If they miss the six months' window, authors will only be able to resume control of their books if they can prove to the cmo that they are the sole holders of the digital rights to the work. (They had better hope they still have their old contracts and reversion letters on file.) No burden of proof is to be laid on the publisher. This overturns the basic principle of copyright, under which the rights are assumed to remain with the author unless someone else can prove that the rights have been assigned to them or they hold an exclusive licence that has not terminated.
In an interview with Le Nouvel Observateur French copyright lawyer Guillaume Sauvage has commented:
'With the principle of the 'opt-out', the author can extricate [his book] from the database at any point if he succeeds in proving that he is the sole holder of the digital rights. But this is strange: that ought to be the case with regard to 99.9% of the authors who signed contracts in the twentieth century, in a period when no contract mentions digital rights and, at the same time, it seems to me that proof of this will not be easy to present.'
('… Avec le principe de l'«opt out», l'auteur peut sortir de la base de données à tout moment s'il arrive à prouver qu'il est le seul titulaire de ses droits numériques. Mais c'est étrange: cela devrait concerner 99,9% des auteurs qui ont signé des contrats au XXe siècle, à une époque où un aucun contrat ne parle de droits numériques et, à la fois, il me semble que c'est une preuve qu'il ne sera pas facile à rapporter.')
'Authorship shall belong, unless proved otherwise, to the person or persons under whose name the work has been disclosed.' ('La qualité d'auteur appartient, sauf preuve contraire, à celui ou à ceux sous le nom de qui l'oeuvre est divulguée.')
Maurel also thinks that under this legislation it will be difficult in practice for authors to establish ownership of their rights. He points out that even the SGDL sounds dubious about this.
In answer to the question, 'How do I know if I have control of my digital rights?' the SGDL says:
'Only the publishing contract (or an addendum, or a letter from the publisher) can provide certainty. If the digital rights were not explicitly transferred, they remain with the author. … It would be highly advisable to seek advice before any exploitation [of the rights].' [See SGDL paper, answers to questions, no. 3. Note that the passage quoted here is only an extract from a more detailed response to this question, which needs to be studied in full if this matter is important to you.] ('Comment savoir si je dispose de mes droits numériques? Seul le contrat d'édition (ou un avenant, ou un courrier de l'éditeur) peut le garantir. Si les droits numériques n'ont pas été explicitement cédés, ils demeurent à l'auteur. … Il est préférable de demander conseil avant toute exploitation.')
Maurel also comments on the oddity of a collective management society's being appointed sole judge of the validity of the proof of an author's ownership of his/her rights, without recourse to the courts. ('et comment d'ailleurs une société de gestion collective (à savoir des éditeurs SNE et des auteurs SGDL…) pourrait se faire juge à elle seule de la validité de cette preuve, sans recours à un juge? Mystère…')
Payment to the authors will be made through a collective management organisation representing both authors and publishers. Some commentators have pointed out that as the legislation stands, the publisher will be paid twice: first through the receipts for the commercial exploitation of the book, and then a royalty or share of the money that the publishing firm itself pays to the cmo!
Some commentators have pointed out that … the publisher will be paid twice – the SGDL claims that this will not happen; that the publisher will only receive a share of the money distributed through the cmo if the digital edition is issued by the third party. [See SGDL paper, answers to questions, no. 6.] (Nonetheless, this does not seem to be the natural interpretation of the legislation as it stands.)
This is truly a wonderful system for the established French publishing houses.
* It will lock out new digital publishers (including much-feared Amazon, now moving rapidly into publishing).
I have been asked by a correspondent to clarify the point above.
If an author misses the six months' window to reclaim a book then even if he/she subsequently proves ownership of the rights (and that may well be a difficult process), then it will most likely still remain subject to the terms of a contract negotiated by the collecting society. That contract (if exclusive) will then become non-exclusive, but it will still last for up to five years. No new commercial publisher will be interested in contracting with the author to do a reprint edition, then or, probably, later. (Not later, because they will most likely estimate that most of the interest and sales will be over by that time.) Hence the law will have the effect of locking out new specialist digital publishers in favour of the established print publishers. And it will also remove incentives from the established publishers to improve the quality of their digital offerings.
The big, well-established publishers are very very edgy over the digital rights to the older titles in their catalogues. In the US a law suit is currently being fought by HarperCollins over the digital rights to a book, the print version of which the company has been publishing since 1971. The author has taken the digital rights to a specialist digital publisher, founded only a couple of years ago. The new legislation in France makes it much less likely that the established publishers there will have to face this kind of challenge, or that authors will have such an option.
This raises another point about the new legislation. SGDL and the Syndicat National de l'Édition (SNE), the trade association for French publishers, have hailed it in a press release as 'innovative' ('innovant'). It is not. It is profoundly backward-looking and will hinder the development of truly innovative approaches to ebook publishing in France.
* It will almost certainly lock the publishing rights to the affected books into the ownership of the publishers who first issued them until the full term of copyright has expired. The presumption is built into the legislation that the original ten-year licence to publish will normally be renewed automatically. And digital editions do not go 'out of print'.
And digital editions do not go 'out of print'. – If I understand their paper correctly, the SGDL are saying that digital publication under this scheme will not affect the legal tests of a book's availability under the French Intellectual Property Code, and that therefore the rights will revert to the author on exactly the same basis as they would have done anyway. I assume that this is what is meant by the passages in the legislation that refer to articles L. 132 12 and L. 132 17 (see above). [See SGDL paper, the main advantages for the author, no. 1; the obligations of the publisher, no. 1 .]
This said, the new legislation will still tend to lock the digital publishing rights to the affected books into the ownership of the publishers who first issued them in print, because it will hinder the development of alternative publishing channels (see the previous point, and the next).
* It will prevent authors from bypassing the publishers and bringing out self-published digital editions of their older books. This is beginning to happen on a wide scale in the United States and it has begun to happen in France too.
Unless authors move quickly to claim their rights, they will only have the option of a non-exclusive publication, as noted above.
Furthermore, if large numbers of authors decide that they would rather take the collecting society’s crumbs than go through the effort (and it is not inconsiderable if you do it properly) of preparing and issuing their own reprint e-editions, it may well prevent, at best stunt, the development of the intermediary services that format self-published digital editions and distribute them to the main webstores. (The best known of these services at present is Smashwords, which operates in the US.) This will undermine, even destroy, that entire distribution channel for self-published books, and entrench the existing companies in their control of the French publishing industry.
Once again, this legislation is much more likely to hinder innovation than promote it.
* It will prevent authors from issuing free digital editions under Creative Commons licences or otherwise.
Again, I have been asked to clarify this.
This law takes no account of any existing cases where authors are freely distributing copies of their out-of-print books on the web. It will catch all books published before 1 Jan 2001 that are not being commercially distributed by a publisher.
As one commentator speculates, 'One may wonder whether an author who decides to distribute his own out-of-commerce book formerly published in the 20th century runs the risk of being sued for infringement, incurring a penalty of 3 years in jail and a 300,000 euros fine.'
* Administration will be in large part outsourced to the cmo, to be funded by skimming the royalty payments. There will be no need for the publishers to negotiate individual contracts or deal with authors individually.
And here is a further point: the cmos are specifically charged by the legislation with negotiating as many publishing deals as possible. This puts the publishers in an immensely strong bargaining position. It's a recipe for bargain-basement contracts with very low royalty rates. This may push the price of digital editions down (it may not; the publishers may decide to keep them artificially high). It will certainly drive down the payments made to authors, and may tend to depress e-book royalties in general. This is not a healthy situation. Note that it will have been reached not through the operations of the market but as a result of a badly drafted and inequitable law.
There will be a price to pay for all this, of course: a cultural and political price. French authors are already showing that they are not prepared to accept this law meekly. I do not know whether publishers or politicians have thought through the consequences of outraging very large numbers of authors.
Further information: web pages in English
The French Senate proposes to legalize piracy of the French 20th century printed heritage – Bernard Lang et al, for AFUL, Adullact and FFII France
How The Google Book Settlement Becomes Law – Sylvie Fodor, CEPIC blog
Torch-and-Pitchfork Party at Bibliothèque Nationale – US copyright lawyer C. E. Petit, Scrivener’s Error
Has France Just Made the Ultimate Copyright Faux Pas Fomented with a Forbidden Formality? – Canadian copyright lawyer Howard Knopf, Excess Copyright
A selection of web pages in French
Cinq choses à savoir sur la numérisation des oeuvres indisponibles – Guillaume Sbalchiero, L'Express
Oeuvres indisponibles : 'Une première en Europe' | Numérisation des oeuvres indisponibles : une loi monstrueuse | Numérisation des oeuvres indisponibles : auteurs spoliés, droit bafoué… | Exclusif : L'accord-cadre sur la numérisation des oeuvres indisponibles – Nicolas Gary, Actuallité [The last of these articles reveals the details of the secret agreement between the government, the publishers and the leadership of the Société des Gens de Lettres, the society of French authors.]
Le droit d'auteur doit rester inaliénable – Génération Science-Fiction
Loi sur les oeuvres indisponibles : une sinistre mascarade – Bernard Lang, AFUL, FFII
Proposition de loi relative á l'exploitation numérique des livres indisponibles du Xxème siècle – Isabelle Sivan, advocate
Numérisation : la grande manoeuvre des indisporphelines – Lionel Maurel, lawyer and librarian
France-Où en est-on avec la proposition de loi relative à l'exploitation des livres indisponibles? | France-Importante modification dans l'exploitation numérique des livres indisponibles | France-Analyse du texte définitif (?) de la loi relative á l'exploitation des livres indisponibles – Axel Beelen, Belgium; lawyer employed by a collecting society
Proposition de loi sur la numérisation des ouvrages indisponibles du XXè siècle – Didier Frochot, les-infostrateges.com
Pourquoi la loi sur les 'livres indisponibles' devrait indigner les auteurs – Guillaume Champeau, Numerama
Numérisation des oeuvres indisponibles: «Cette nouvelle loi est une usine à gaz» – Le Nouvel Observateur, interview with French copyright lawyer Guillaume Sauvage
Petit guide de survie juridique à l'usage des auteurs d'oeuvres indisponibles – Lionel Maurel, lawyer and librarian