Legalized Copyright Theft Begins In France: Government Prepares To Dispossess Writers Using Public Funds

A lot has been happening in France regarding copyright, digitization and orphan works. I barely have time to follow these developments, much less to write about them in any detail. However, last week the French National Library “published” the list of the first books to be plundered under new legislation allowing commercial use of certain unavailable books without the author’s consent. As if that isn’t bad enough, the list is so poorly put together that it’s difficult even to know who all the affected victims authors are or to detect errors in the registry. I felt I had to say something about this.

The Saturday before last, I was encouraged about the future of reading when a young person I know told me that her class had taken a field trip to the Salon des Livres (the Paris Book Fair). She said it was “trop cool” (too cool) and enthusiastically described the books she had found.

Just days later, I read that the ReLIRE Book Registry had been made available online. That’s the registry of “unavailable books from the twentieth century” where authors are supposed to be able to opt-out of having their out-of-print titles digitized and the rights to them transferred to a collective licensing agency. Apparently the launch was rushed so that announcements could be made during the Salon, which may (or may not) explain why the registry is filled with errors and provides little help for authors trying to locate their works.

From the outside France often seems like a benevolent state with laws that protect individuals from injustice by those in power. Compared to neighboring states and to the US, French laws are generally quite favorable to workers, and the state offers a great deal of aid to the economically disadvantaged. However with this law, the government seems to have sided with publishers against the rights of the individual, in this case the author, as well as against the interests of the public.

There is a growing sense of outrage among writers at what many view as legalized theft of authors’ property, the fruits of their labor and their source of livelihood. Until now, according to French copyright law, publishers have had a responsibility to make sure that published works remain commercially available. In the past, if the publisher failed to fulfill this obligation, then all rights to the work reverted to the author.

With the new law, the rights to these unavailable books (defined as books published in the twentieth century that are commercially unavailable) can be claimed by the publisher if the author doesn’t come forward to “opt out.” The list of unavailable books is published in a registry and the author has six months following publication of one of his works in the registry to indicate that he wishes to reclaim it. After the six months have expired, the book may be digitized and the author must demonstrate special circumstances, such as damage to his reputation, to reclaim his property.

Update: Lest you think this is just a French problem, @BlankTextField has reminded me to mention that the new law applies to books published in France. This means that if you’re a writer and your work has been translated and published in France, you may be affected.

The recent publication of the registry containing a list of the first 60,000 “unavailable books” to be digitized may be the goutte qui fait déborder le vase. The registry seems to contain a number of errors and doesn’t even offer simple tools so that authors can find and claim their property.

I’ve placed a number of references at the end of this post for those who’d like to read more about the latest developments, but if you don’t read French you’ll need to get a translation or try Google Translate. For English-speaking readers, here are a few highlights from the sources referenced below,

• It is not possible to browse the registry. The only way to find out what is contained in it is through the search tool. Update: @BlankTextField has drawn my attention to an unofficial site, which, thanks to the efforts of @TeamAlexandriZ, is hosting the complete registry in several formats, such as .xls or .cvs.
• Authors whose works are included in anthologies will not be able to find these anthologies by searching for their name in the author field.
• The registry contains over 500 books that were published after January 1, 2001 (the cut-off date for unavailable books from the twentieth century).
• The registry contains several works published before the 20th century, including the 17th and 18th centuries! These should be in the public domain.
• Publishers submitted 10,000 titles (1 out of 6) to the registry directly.
• Several authors have found their works contained in the registry despite having already reclaimed their rights from the publisher and even though the books in question are still available (in some cases online).
• Several authors have found their works on the list to be digitized (and rights turned over to a collective agency) although high-quality digital editions of them are already available on-line. (The cash-strapped French government apparently isn’t worried about putting unnecessary money into re-digitizing currently available digital books.)
• The registry also contains orphan works, for which no author will come forward. This allows publishers to reclaim the rights to such titles and circumvent a recent European Directive that would have allowed orphan works to be digitized and offered for open access by libraries.

Update:

• A number of typos have already been discovered in the registry. It’s hard to know how many authors may not find their books simply because their name was misspelled.

As I speculated last fall, Lionel Maurel seems to believe that books digitized under this scheme will be made available to libraries as a paid service, with at least 50% of the profits going to publishers if authors come forward or 100% if they don’t. It’s not clear how much the service might cost libraries, but as funding for libraries decreases, it seems likely that many smaller libraries won’t be able to afford access, which will limit the availability of these works to the broader public. Furthermore, since libraries, like digitization, are funded by tax payers, it appears that citizens are being asked to pay twice, once for digitization and a second time to fund library services, while the profits go to publishers who don’t actually have to do anything except sit back and receive the funds.

Where I come from this type of law has a name: pork barrel. That it’s based on legalized appropriation of the work of writers without their consent makes it that much more despicable.

In France there is now a double standard for piracy: it’s illegal for individuals to copy material without permission and share it freely online, but for some works the state can make a digital copy without permission and allow its sale for commercial gain. This looks like the plundering of individual property for private gain, which deprives writers of the rewards of their own labors and deprives the public of open access to orphan works.

Previously Here
France Chooses Profit For Publishers Over Authors Rights And Public Libraries
Digital Graft And The Citizen’s Library

Further Reading
ReLIRE, registre des livres indisponibles en réedition électronique
De la loi sur les indisponibles au registre ReLIRE : la blessure, l’insulte et la réaction en marche
auteurs, contre l’Etat voleur, réclamez vos droits!
Relire: le scandaleux pillage du droit d’auteur organisé par la loi
Planquez-vous, voilà la nouvelle usine à gaz! (aka ReLIRE, liste des Indisponibles