French Copyright Grab: the Machine Creaks into Action
On 27 February the French Republic issued a decree implementing the Loi relative à l'exploitation numérique des livres indisponibles du XXe siècle [Law relating to the exploitation in digital form of unavailable 20th century books] which was passed in March last year. For the earlier history of this law and some analysis see my previous posts France Guillotines Copyright and The New French Legislation: Further Points, including the comments; see also the web pages linked from those posts.
A first list of 60,000 books was issued by the Bibliothèque nationale de France (BnF) on 21 March. The books, which are all in copyright, and which are supposed to be commercially unavailable, will be transferred to collective management on 21 September unless the authors or their estates and/or the original publishers make successful applications to stop this happening.
Once taken into collective management, the intention is for the books, or most of them, to be digitized with public funding and issued, for profit, by publishers and content aggregators, without the permission of the authors and illustrators. In nearly every case the digital rights to the text of these books is likely to be the legal property of the authors or their heirs. Some money is supposed to be being channelled by the collecting society to those authors who apply for it. There are reasons to suppose that it will not be very much.
The legislation establishing this scheme goes thoroughly against the letter and spirit of existing French copyright law. Now that the decree has been issued, a group of French authors are planning to challenge it on constitutional grounds: ‘…the collective … “The Right of the Serf” is preparing to take legal action against the decree, aiming to file an appeal on grounds of ultra vires within two months.’ [Le nouvel Observateur, 21 March 2013: ‘…le collectif … «Le droit du serf» prépare une «action juridique contre le décret, visant à déposer un recours à l’excès de pouvoir» d’ici à deux mois.’]
The ReLIRE database
The books selected for the first stage of the French scheme are listed online in a database called ReLIRE. The database is not very good. Even the website FAQ admits that some books which are, in fact, currently available in print and/or digital form have been entered in the database in error. The database also reportedly contains more than 500 books published after the legal cut-off date, 31 December 2000. There are other problems, of which more later.
The database contains entries for a number of works by foreign authors. Some of these are French originals by authors from French-speaking areas such as Suisse Romande, Wallonia, Algeria and Quebec. There are also works that have been translated from English. Encroaching on the rights of foreign authors makes France liable to international action under the Berne Convention and other copyright treaties.
Some of the works on the database are by highly distinguished authors. These include Une Autre façon de raconter, the French text of John Berger’s Another Way of Telling, produced in collaboration with Swiss photographer Jean Mohr. Berger, though resident in France for many years, has not, I believe, taken French nationality.
The Society of Authors has advised its members to check the database to see if it includes any of their works.
Works translated from English
Not long after the database came online it was pointed out in a blog post that it contained an anthology of American science fiction in translation, including stories by such well-known authors as Ursula K. Le Guin, Samuel R. Delany, Robert Silverberg and James Tiptree, Jr. This was not the only listed anthology to contain translated stories. French author Léa Silhol found her anthology De Sang et d’Encre in the database: this contains stories by a number of British, Canadian and US authors. A third sci-fi anthology contains stories by, among others, Kingsley Amis, Philip K. Dick and Roger Zelazny.
All three of these anthologies were removed from the database, apparently after objections had been lodged by contributors and/or editors. It is noticeable that the fairly leisurely process specified in the regulations was not followed. The BnF removed these books soon after it received the objections. This contrasts with the treatment that has been given to works by French authors who have applied to have their books removed. In such cases a notice is added to the database entry; the BnF and the collecting society then have four months to process the application [example]. But these three collections containing translated short stories were removed very quickly indeed.
Another book that was in the database ten days ago has also been removed in quite a hurry; it is a translation of a work by the prolific US author Upton Sinclair (1878–1968). If you search under ‘Upton Sinclair’, the search engine will return ‘Aucun résultat’ (No result). The link to the detailed record for the book was working yesterday, and brought up the title and author, together with an error message. Today, this too has been removed, and there is only a ‘page not found’ error message.
It should be noted that attention was drawn to three further sci-fi collections, containing stories by, among others, British authors Brian Aldiss and Graham Masterton, in a comment on the blog post cited above. These books have not been removed, nor has a notice been placed on the records. It cannot be assumed that the BnF will remove a book simply because it is found to contain work by foreign nationals. A formal request must be made, in the manner prescribed in the regulations.
There are other books in the ReLIRE database that contain translations of works in English. Here are a few that I have found with two or three cursory searches. By way of experiment, I elected to search under terms like ‘mystère’ and ‘crime’, so what I have turned up is mostly crime fiction. Please note that I have not conducted anything remotely like a thorough examination of the database. These are examples, not an exhaustive list.
An anthology of crime stories, Anthologie du mystère 89, edited by Jacques Baudou, turns out, when its contents
are investigated, to contain a story by British detective story writer Patricia Moyes, along with several Americans: Sue Grafton, Joe Gores, George Baxt, Lawrence Block, Jack Ritchie, Loren D. Estleman. The contents of the book cannot be gathered from the ReLIRE database, nor even from the BnF catalogue, to which it is linked. I found a partial list on the site of a secondhand book dealer. There is also a volume with the same editor called Mystères 88 : les dernières nouvelles du crime. Again, there is no indication of the contents on ReLIRE or the BnF catalogue. According to a site on the web it contains stories by P. D. James and best-selling Japanese author Shizuko Natsuki, among others.
A book called La Griffe du passé by ‘Rachelle Swift’ is, as the BnF catalogue notes, a translation of a novel in English entitled A Taunt from the Past. A search on the web identifies ‘Rachelle Swift’ as a pseudonym of Jean Barbara Lumsden (1916–1998), a New Zealand author.
There are two works by the American mystery writer Mabel Seeley (1903–1991): D’Autres chats à fouetter (The Listening House) and Il siffle dans l’ombre (The Whistling Shadow). There is no note in the catalogue identifying them as translations. Amazon.fr identifies the translator of both books as Edwige Champoury.
Pour tout l’or du Mali by John Wyllie is a crime novel by a Canadian author. It was translated from English by Jean-Luc Estèbe. There is no note in the BnF catalogue identifying the work as a translation, or Wyllie (b. 1914) as Canadian.
I also found more sci-fi/fantasy works: a book by US author Frank Belknap Long (1903–1994), under the title Le Gnome rouge, and a werewolf anthology containing stories by Suzy McKee Charnas and Brad Strickland.
Publishers taking advantage
‘You will have the possibility of having an exclusive publishing licence for 10 years, implicitly renewable, to exploit the book in digital form, without having to sign a contract with the author or the author’s successors in title for the digital rights.
Sofia [the collecting society] will contact the authors or the successors in title to pay them, in accordance with the terms set out in the publishing contracts.’
[ … vous aurez la possibilité d’avoir une autorisation d’exploitation exclusive de 10 ans, tacitement renouvelable, pour exploiter le livre sous forme numérique, sans avoir à signer un contrat numérique avec l’auteur ou les ayants droit de l’auteur.
La Sofia contactera les auteurs ou les ayants droit des auteurs pour les rémunérer, selon les modalités décrites dans les contrats d’exploitation.]
Two points that the FAQ discreetly avoids spelling out are:
1. The legislation specifically charges the collecting society with developing contractual relationships that will ensure the greatest possible availability of the works. [‘… développer des relations contractuelles permettant d’assurer la plus grande disponibilité possible des oeuvres’: Code de la propriété intellectuelle, Article L134-3, III.7]
This puts prospective publishers in a very strong negotiating position and more or less guarantees that the contracts agreed will be bargain-basement deals with very low royalty rates, regardless of the market value of the work.
2. Certain administration costs that in a normal publishing arrangement would be borne by the publisher will instead be borne by the collecting society, which will take them out of royalties (so all or part of them will be taken from the authors’ share of any income). These include the cost of contacting authors and estates.
A rip-off deal for authors
By contrast, authors are promised simply this: there will be a prospect of their works being made commercially available in digital form, and they will be remunerated by the collecting society. As to the extent of the remuneration, all that is promised is this: that the amount received by the authors cannot be less than the amount received by the publisher.
This is vague to the point of being misleading. The ‘publisher’ who is meant here is not the publisher who undertakes to issue the work in digital form: this is not a profit-sharing deal. The publisher in question is apparently the publisher of the print edition, who under this scheme, if it passes up the chance to bring out a digital edition itself, is due to be paid a share of the royalties negotiated by the collecting society. [See this paper, III.6.]
No assurances at all have been offered about the royalty rates, and that is a much more important issue. As I said in the previous section, it is likely that the collecting society will be compelled to strike bargain-basement deals only. It will also skim the royalty payments to cover its operating costs.
Altogether, there are far more satisfactory ways for an author to arrange to reissue a book in digital form.
Searching on the database
The ReLIRE database and the associated entries in the BnF catalogue have many defects:
- The real names of pseudonymous authors are sometimes not identified.
- In the case of anthologies and similar multi-author works, the BnF catalogue usually lacks even a partial list of contributing authors.
- The English title of a book has not always been entered, nor has the name of the translator.
- Some of the books in the ReLIRE database were published after the cut-off date.
- Some of books in the database are commercially available in printed and/or digital form.
- There are many spelling errors.
Here are a few advisable precautions:
- Search on pen names as well as real names.
- In the case of multi-author works, search on the French title of the book.
- Check up on books published since the start of 2001, as well as books published earlier.
- Check up on books that are still in print, or commercially available in digital form.
- Run extra checks to compensate for possible spelling errors.
- Keep your searches as simple as possible.
The ReLIRE database has two search functions, basic and advanced. A text box for the basic search is available at the top of most or all of the web pages on the site. It appears to run a free text search, not only on the records in the ReLIRE database itself but also on the corresponding records in the catalogue of the Bibliothèque nationale de France (BnF), which contain more detailed information about each book.
The advanced search is linked from the results page and from each individual record. It allows for a search on certain data fields, singly or in combination:
- Titre (Title)
- Auteur (Author)
- Éditeur (Publisher)
- Date d’édition (Date of publication)
The advanced search page offers some search tips in the side panels. Here is a translation (pdf).
There is more advice on searching in a very useful web page by author and former publisher Léa Silhol.
I have found that Boolean searches (using AND, OR, NOT operators) and proximity searches (using, for instance, NEAR) don’t appear to work. Nor does the ? wildcard.
The free-text search doesn’t run on the associated author records in the BnF catalogue (which are linked from the records for each book). There is no point in searching, for instance, under “Nationalité(s) : Grande-Bretagne”, or anything similar.
Applying to have a work removed
Léa Silhol covers this process in considerable detail.
Here is a translation of the key page on the ReLIRE website (pdf).
Protest this illegal imposition
Whether or not you find that any of the books on the list are by you, or contain works by you, make a complaint to your government about the ReLIRE project, and talk to any author societies to which you belong.
The Berne Convention says: ‘Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.’ (9.1) This can only be overriden ‘in certain special cases’ and ‘provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author’. (9.2) The Convention says of all the rights that are guaranteed under it: ‘The enjoyment and the exercise of these rights shall not be subject to any formality‘. (5.2)
By compelling foreign authors, in order to prevent their works’ being co-opted into collective management, to search for them on a database and request their removal, the French government has imposed an illegal formality on their exclusive exercise of the right of reproduction.
The ReLIRE scheme is in no sense a ‘special case’ within the meaning of Article 9.2. By intervening in such an outrageous manner in the fast-developing market for digital rights it interferes with the normal exploitation of the works and most unreasonably prejudices the legitimate interests of the authors.
Links (all in English)
Advice note from the Society of Authors: The ReLire Project – a note to members
Translations of key pages on the ReLIRE website:
- Translation of ReLIRE home page (pdf)
- Translation of Your Rights page (pdf)
- Translation of Search page (pdf)
- Update: Translation of extracts from FAQ page (pdf)
Survival Guide and other useful pages by Léa Silhol:
- A Survival Guide: Pardon my French, for non-French fluent foreign artists dueling the ReLIRE system
- FAQ: Some (advanced) Questions/Answers about the
ReLIRE opt out system
- Current action (with links)
- Scoop.it page of relevant links wholly or partly in English
Posts by ‘Laura’ on The Well-Prepared Mind blog:
- Legalized Copyright Theft Begins In France: Government Prepares To Dispossess Writers Using Public Funds
- Harlan Ellison, Ursula K. Le Guin Among Award-Winning Writers On French “Copyright Theft” List
- Reactions To Rollout Of France’s Book Digitization Project
- Anthologies Of Authors In Translation Pulled From ReLIRE
Pages by Julie Mornelli on penseeslibres.com:
- Acts of Piracy: how the French could be stealing your author rights with ReLire
- English Translation of the ReLire Project page [French: Le projet ReLIRE: le cadre légal]
Julie Mornelli is also hosting a list of the initial contents of the ReLIRE database. [In Open Office spreadsheet format, but will open in Microsoft Excel; file zipped, 6.2 mb]
You may find this easier to use than the search facilities offered by the ReLIRE database, though the author names are alphabetized by the first names, so global free text searches are still necessary. It is interesting to see what has already been silently pulled from the database: two translations of novels by the German novelist Ernst Wiechert, for instance.