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Authors and publishers - a "historic" agreement

Marie Sellier (CPE président ) et Vincent Montagne (SNE président)
photo : © sgdl

 

 
08 march 2013»  
For the first time since 1957, the provisions concerning publishing contracts in the Code of Intellectual Property are to be significantly modified in France to take into account the impact of digital technology on the book industry.

 

After several months of negotiation, the Conseil permanent des écrivains (CPE: 17 associations/societies of authors) and the Syndicat national de l’édition (SNE: 650 member publishers) have reached an agreement about the terms of an agreement which not only sets forth the new principles of book utilization in digital form, but also profoundly alters the contract binding the author to the publisher on modern bases, adapted to 21 st century publishing.

Brief background

Discussions between the CPE and the SNE, which were initiated in 2009 and re-launched last autumn by the Minister of Culture and Communication, and, at the outset, focused solely on the transfer of digital rights, have culminated, as part of Professor Pierre Sirinelli’s brief in his role of mediator, in an agreement signed on 21 March 2013 covering all the provisions of the Code of Intellectual Property which will henceforth govern publishing contracts and a specific Code of Practice.

Its major guidelines

The provisions which feature in this agreement are thus based on a new and original organization between the Code of Intellectual Property and the Code of Practice which, drawn up under the aegis of the Ministry of Culture, will be designed to apply to all authors and publishers.

The particular purpose of this Code will be to specify the steps to be taken in the event of litigation, sidestepping obligatory appearances before the courts, something which presented a decisive disadvantage for the author in relation to the publisher. The law explicitly directed at a Code of Practice, and no longer “the practices of the profession”, will give this latter a power extending at all authors and publishers and no longer just to signatories. These measures will thus more decisively protect authors against malpractice.

A definition of the publishing contract in the digital world:

The current definition of the publishing contract only covers the printed work. A new article is being proposed which deals with digital utilization: New article L. 132-1 of the Code of Intellectual Property: “The publishing contract is the contract whereby, under certain specific conditions, the author of a work of the mind or his beneficiaries gives a person called the publisher the right to manufacture or have manufactured a number of copies of the work, or to produce it or have it produced in a digital form, it being the responsibility of this person to guarantee its publication and distribution.” This new clause dematerializes the book, encompassing the digital as a medium.

A unique publishing contract with a specific part for the digital:

In order to clarify the contract, it will be obligatory to provide therein a distinct part containing all the provisions concerning the digital utilization of the work—(nevertheless without having made an agreement about the drawing-up of a separate contract, like the one existing for the audiovisual adaptation of the work), namely, for the digital part:

-the duration of the transfer of the digital rights;

-the conditions for re-examining the author’s remuneration in respect of the digital utilization;

- the forms of digital and/or electronic utilization envisaged and authorized;

-the proportional and/or lump sum remuneration of the author as well as the method of calculation used;

-the conditions for signing the digital distribution order;

-the recurrence and forms of presenting accounts;

-the conditions for recovering the right of digital utilization.

Digital “press proof” (BASN: digital distribution order):

Just as there is a press-proof for a printed book, the author will be able to sign a “digital press-proof” whose conditions have been defined, and thus validate the conformity of the work with his intentions.

The publisher will be obliged to make a paper publication prior to its digital utilization, and will not able to substitute the former by the latter, unless this is explicitly provided for.

The publication and ongoing and monitored utilization of the work in digital form:

Publication deadlines for a work in a digital form have been introduced, as well as the criteria making it possible to appreciate its “obligation of ongoing and monitored utilization” by the publisher, to wit:

-the obligation to utilize the work in its entirety in a digital form;

-the obligation to present the work in his digital catalogue;

-to make it accessible in a utilizable technical format taking into consideration the usual market formats and their development, and in at least one non-proprietary format (to avoid distribution monopolies of the Applestore type);

-to make it accessible for sale, in a non-proprietary digital format, on one or more online websites, in accordance with the commercial model in effect in the publishing sector in question.

These criteria should avoid reducing the utilization of a book to the passive expectation of an order. If the publisher fails to comply with these obligations, this should enable the author to retrieve his digital rights.

The author’s remuneration in the digital world

The base of the author’s remuneration has been broadened. The spirit of the text is to preserve the author’s revenue calculated for the printed utilization on the public sale price of the work, adapting it for digital utilization to a calculation on proportional or lump sum revenues issuing from advertising receipts, for example, or sales by packages or by subscription. The author will henceforth be remunerated on the basis of the pro rata price paid by the public for consultations and downloads of the work: “The methods of calculating the public sale price acting as a basis for the remuneration, when it is the object of a replenishment by the publisher, will be communicated to the author, merely at his request. In the hypothesis whereby the publisher is not in a position to make this calculation, the author will be remunerated on the pro rate receipts collected by the publisher for consultations and downloads of the work.”

The principle of a remuneration based on all the revenues of the publication, and no longer just on the sale of the books by unit, is thus re-affirmed.

Re-examination clause

A “re-examination clause” of the digital use is being introduced in order to adapt the contract to the development of the market’s utilization media: “The re-examination of the economic conditions of the contract must focus in particular on the compatibility of the author’s remuneration, be it proportional or lump sum, with the development of the publisher’s or the sector’s economic models of digital distribution.”

This re-examination may be requested by the author and by the publisher within a period of four years as from the signing of the contract, and for a duration of two years. This clause alone is a minor revolution, because the contract is henceforth no longer something immutable carved in stone. A joint conciliation committee will be able to intervene in the event of disagreement by pronouncing opinions on specific cases.

The presentation of accounts

The publisher is bound to present the accounts to the author at least once a year for the duration of the contract (sales, stocks…). The items which must be included in this presentation of accounts have been specified and complemented. Provision is also being made for a move to online availability. Non-compliance with this obligation will permit the author to fully cancel the entire contract , without having to turn to the courts (as previously). These new provisions should help to ease tensions between authors and publishers.

An end of utilization clause : no “flat encephalogram chart” in sales.

In the absence of any utilization performance of his book, be it printed or digital, within a period laid down by the law, the author will also be able to fully cancel the whole contract.

The vote in Parliament

This text must now go through the various parliamentary stages: passage through Parliament of the draft law and practical implementation (application of the law in time).

For the first time, however, authors and publishers have managed to agree to define good and bad practices, and look for appropriate measures for promoting the former and banning the latter. By introducing possibilities of automatic retrieval of rights, this agreement gives authors the capacity to put an end to lengthy and costly procedures which formerly dissuaded them from claiming their due rights.

 
     
   
 
   
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© CPE, 2013— Renseignements : 01 40 51 04 01 — Accueil : www.conseilpermanentdesecrivains.org