Modèle:ConsultCE2014:Legal requirements for fair publishing and distribution contracts

7. Legal requirements for fair publishing and distribution contracts

One must absolutely defend the rights of authors and other contributors to creative works against what copyright has become. Dozens of treaties, directives and laws similarly invoke authors to justifiy measures that despoil the great majority of them and restrict in parallel the rights of the public who appreciates their works. The recent French law on out-of-publication works (pending review by the Constitutional Court) is an extreme case. This law ignores and tries to prevent any form of non-market access, it centers solely on the commercial exploitation of out-of-publication works, submitting them to collective licensing managed by a collecting society dominated by publishers. Authors are left only with the possibility to opt out of the system. The public is deprived of any form of non-market access to works, which is in reality a key purpose of the law as seen by publishers, in particular when orphan works are concerned.This extreme case illustrates a much more general situation. A recent English bill goes exactly in the same direction.

One must renew urgently with the approach of Jean Zay. In the digital era, one must impose equitable terms towards authors, contributors and the public, not just for commercial publishing but also for commercial distribution. The basis for these equitable terms, to be enshrined in contract law, would be:

• A separate contract for digital publishing rights, with a limited duration corresponding to the reality of fast-changing digital technology and usage.
• In the case of a mixed edition (paper or other carrier and digital edition), the rule of a return to authors of rights as soon as one of the modalities is no longer available (with a reasonable delay after notification by the author, at most six months). It is not acceptable for the simple availability of a digital version to make possible for publishers to keep paper editions out-of-print for as long as they wish.
• Forbidding distribution platforms to impose terms that exclude the non-market distribution of works by their authors.
• Minimum royalty levels for authors and other contributors in commercial exploitation of their work, taking in account the strong reduciton of costs in digital publishing.

None of these conditions would constitute an obstacle for innovation in publishing. On the contrary, it would create a more open ground for experimentation.