Just over a year ago, I wrote about a new French law that, under the guise of dealing with the pressing issue of orphan works, implements a truly massive rights transfer.
The law empowers the Bibliothèque Nationale de France to create an online database of works published in France before 2001 that are currently out of print (this includes not just works by French writers, but foreign works translated into French). Once a work has been listed in the database for more than six months, the right to digitize it transfers to a collective management organization, which thereafter has near-unlimited power to exploit that right–including granting it to publishers without the author’s permission. The collective management organization will also be responsible for distributing (an unspecified portion of) the proceeds from such grants to rightsholders.
There’s a six-month waiting period between a book’s appearance in the database and the transfer of rights to the collective management organization. To be removed from the database, rightsholders–who are not currently being notified if their works are included–must opt out in writing before the six-month waiting period expires. If they miss that deadline, they lose control of the digital display and sale of their work, and can only demand removal by proving that that they are the sole holder of digital rights.
The database, known as ReLIRE, is now online,with an initial list of 60,000 books. According to a comprehensive post on the program by writer Gillian Spraggs, numerous problems have been noted, including data errors, inclusion of books published after the 2001 cutoff date, and inclusion of books still in print or already available in digital form. Also included are many translated works by foreign authors that are clearly not orphans.
Digital-hungry publishers are already taking advantage of the database. Spraggs writes,
‘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’…
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…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.
For authors, Spraggs says, it is “a ripoff deal.”
Writers’ groups in the US are taking notice of this threat to copyright. The Science Fiction and Fantasy Writers of America has sent the letter below (reproduced with permission) to members, a number of whom have already found their works included in ReLIRE.
Dear SFWA Members,
As many of you already know, the ReLire program currently underway in France has scanned many books it considers to be “orphan works” in order to make them available through a public database. This database has already been found to contain many titles that are clearly not orphan works or in the public domain, including a number by prominent SF and fantasy authors. A more detailed explanation of the program is available here.
As this is a program of the Bibliotheque Nationale Francaise (French National Library), the Board is currently discussing options for applying pressure to the French government to prevent further works by SFWA members from being scanned and made available through this program, and we invite any members who have connections with the United States Trade Representative or any relevant branch of the U.S. Government to contact us. For the moment, however, we are informing all members of the issue and making them aware of the process involved in finding out whether a work is included and how to request that it be removed from the database.
All parts of the ReLire website and database are available only in French. The Society of Authors has produced translations of four key pages:
Here is a direct link to the advanced search page. The search fields are Titre( Title), Auteur (Author), Editeur (Editor) and Date d’edition (Publication date). If you are aware of any works of yours that have ever been published in French, you are strongly advised to search under all of the first three fields, as the entries in the database have been found to have many typos. Please notify SFWA of any of your works that are found in the database, as that will be valuable information in our efforts to protest the program.
If you do find any novels, stories or any other works belonging to you in the database you may request to have them removed. Please note that at this time it appears as though you will need either a French identification card (only available to residents of France) or a valid passport to make the application. We are awaiting clarification on the question of whether any other forms of identification will be accepted.
Thanks to Aliette de Bodard, Lawrence Schimel, Michael Capobianco and Jim Fiscus for their help in researching and co-ordinating SFWA’s response.
If any of your works have been published in French, and you find them included in ReLIRE, see this step-by-step manual for applying to have the work removed. For many other helpful resources and links, as well as some of the writing/publishing community’s reaction to ReLIRE, see Gillian Spraggs’s blog post, French Copyright Grab: the Machine Creaks into Action.
Spraggs writes that a group of French authors are planning to challenge the new law on constitutional grounds. She concludes by urging all writers to protest ReLIRE:
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.
UPDATE 12/16/17: The law underlying the ReLIRE program has been annulled, following a 2016 ruling by the EU’s highest court that the law violates the Berne Convention as well as various EU laws. The ReLIRE database remains live as of this writing.