France Chooses Profit For Publishers Over Authors’ Rights And Public Libraries

Last week, Mike Cane alerted me to a new law that was recently passed in France: France’s Book Grab: Worse Than Google Books.

The law was passed on February 23 and relates to the digitization of “unavailable books” from the 20th century. As set out in the motivation for the proposal of the draft legislation to the Senate,

In effect, because there is little economic profit to be gained, a large part of the titles published in the 20th century were not reprinted. The titles are out of print, commercially unavailable and no longer accessible except in libraries. In this context, digitization is the only imaginable way to bring new life to this important corpus, but it is not legally possible, because the ownership of the digital rights is unclear.

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En effet, pour des raisons de faible rentabilité économique, une grande partie des titres publiés au XXe siècle n’a pas été rééditée. Les titres sont épuisés sous forme imprimée, indisponibles dans le commerce et ne sont plus accessibles que dans les bibliothèques. Dans ce contexte, la numérisation est le seul horizon envisageable pour faire renaître cet important corpus, mais elle n’est juridiquement pas possible, car la titularité des droits numériques est incertaine.

As well-described in the articles referenced by Mike, in order to address this issue and find a solution to the rights issues allowing the digitization (and distribution) of these unavailable works, the law breaks from what would seem (from the perspective of the prevailing French copyright legislation) the logical step of assigning the digital rights to the author, presumably on the assumption that the author may not have the means or interest to finance the digitization. The explanatory text for the introduction of the law therefore invokes the convoluted argument that it would not be profitable for publishers to review, and if necessary amend, their current contracts with authors to include mention of the digital rights, and therefore proceeds to set out a scheme by which a collective licensing body will automatically assign the digital rights to the publisher that holds the rights to the printed version of the book, unless an objection is made by the author or other legitimate rights holder according to a tightly regulated (and rather confusing) process.

For English speakers, Action on Author’s Rights has a good description of the law and its implications for authors, including foreign authors whose books have been translated and published in France: France Guillotines Copyright. The interpretation there corresponds closely to my understanding of the French text of the law. (Disclaimer: I am neither a native French speaker, nor a lawyer, however I have worked for the past 10 years in a French-speaking environment in positions that bring me in close contact with contracts and other legal documents.)

As far as I can tell, the major flaw in the law, with respect to existing copyright legislation, is that it permits the licensing body to assign digital rights to the publisher by default, instead of to the author, and that it places a burden of proof on the author who wishes to object to this transfer of rights, instead of placing that burden of proof on the publisher, as might be expected by law.

The Conseil Permanent des Écrivains (Permanent Council of Writers) has published a practical guide for writers to help understand publishing contracts in France. Making reference to articles 131-2 and 131-3 of the French copyright law, the guide points out that in terms of the law, all the rights that have not been expressly ceded by an author [in the contract] remain his property alone. (“Aux termes de la loi, tous les droits d’exploitation qui ne font pas l’objet d’une cession expresse et écrite par un auteur demeurent sa seule propriété (L.131-2 et L.131-3”).

This was also pointed out by Lionel Maurel who published a very insightful post on his blog S.I. Lex, Numérisation : la grande manoeuvre des indisporphelines.

‘Indisorpheline’ is not a word you will find in any French dictionary (yet). It’s a combination of the French words, ‘indisponible’ meaning ‘unavailable’ and ‘orphelin’, meaning orphan. Its use was intended to emphasize the lack of distinction between unavailable and orphan works in the text of the law, the problem being that the law pertains to unavailable books, defined as those published in France before January 1, 2001 that are no longer commercially distributed by a publisher and that are not actually published in printed or digital form. (“On entend par livre indisponible au sens du présent chapitre un livre publié en France avant le 1er janvier 2001 qui ne fait plus l’objet d’une diffusion commerciale par un éditeur et qui ne fait pas actuellement l’objet d’une publication sous une forme imprimée ou numérique.”)

Many of these unavailable books will in fact be orphan works, and rights to their digital publication will automatically be transferred to the collective licensing body because by definition no one else will come forward to claim them.

The article makes several other points that shed a great deal of light on the motivations for this law. I’ve summarized them below, but you can try reading the article directly via Google Translate if you don’t read French.

The law was explicitly presented as a reaction to moves by Google. Ironically, the Google Books Settlement was rejected in part because the opt-out mechanism was judged incompatible with author’s rights, but this is precisely what has now been passed by law in France. One difference is that instead of the Google Books Registry, the French collective licensing body will fall under the auspices of the French Cultural Ministry.

Introduction of the law is tightly linked to the financing of the digitization of half a million books by the French National Library by means of the “Grand Emprunt,” a loan announced in 2009 to finance future growth in important sectors of the economy. The framework created by the law has the effect of setting up a public-private partnership to make the investment of digitization profitable via the commercialization of the digitized works.

This becomes all the more concerning when the language of the text has been carefully crafted to make reference to “unavailable works” instead of “out of print works.” The reason for this is clear; Articles 132-12 and 132-17 of the Intellectual Property Rights legislation clearly state that the publisher has an obligation to ensure that the book remains commercially available. Failure to do so will cause the rights to revert to the author. When seen in this light, it becomes clear that the current law is a thinly veiled attempt to transfer to publishers a right that should have reverted to the author or to the author’s estate.

Finally, the article also clearly sets out evidence that the law was intended to pre-empt the European Directive on certain permitted uses of Orphan Works. According to the explanatory memorandum thereof,

The main objective of this proposal is to create a legal framework to ensure the lawful, cross-border online access to orphan works contained in online digital libraries or archives operated by a variety of institutions that are specified in the proposal when such orphan works are used in the pursuance of the public interest mission of such institutions.

Since the French law encompasses orphan works in the aggregate of “out of print works,” the former will be automatically subject to a process designed to permit their commercial use via licenses granted by the collective licensing body. This maneuver has the effect of preempting the European directive whose objective is that States make provisions to provide access to such works to all EU citizens by way of digital libraries.

Oddly, there is no mention of collective use in the French law. After ten years, libraries may be granted a free license to make works available in digital form, on the condition that they don’t receive monetary compensation for providing such access, however this license can be revoked at any time by anyone who steps forward to claim the rights to the digitized works. It is therefore not inconceivable that a publisher could step forward to revoke this free right in order to charge the library for access to the digitized version. The publishers thus stand to receive any economic windfall resulting from the digitization financed by the “Grand Emprunt,” and this at the expense of the public and the libraries.

After coming to terms with my outrage over the introduction of this legislation in France (I shouldn’t have been surprised after the HADOPI fiasco), I’ve decided that if anything positive will come of this, it will be the raising of awareness this act will bring to those watching from other European states and the positive potential of directives like that of the European Council.

I’m hoping to do a post about that in the near future.