From The Register (originally published on 29 February):
Last week France passed a law that permits the state to seize authors’ rights on out-of-print books published before 2001. Scribes have just six months to opt-out, or lose their moral rights and the ability to determine a price for their work.
It’s essentially a Compulsory Purchase Order for intellectual property – the author’s work is no longer their own. Ownership is instead transferred to a quango answering to the French Ministry of Culture, which is authorised to make it digitally available. Publishers are the big beneficiaries.
The law has united copyright groups with the free software movement and Pirate Party in opposition.
Since the law applies to British authors and illustrators who have been published in France, it’s likely to draw fierce protest. Ironically France prides itself as the home of creators’ rights – and pioneered moral rights – or droit d’auteur as they call them.
The land grab is so brazen that even the French Pirate Party has come out fighting against it.
More details in the article.
It’s not “seizing rights,” it’s a compulsory license in the same manner as the U.S.’s compulsory music license. The U.S. has had this for years. It’s why it’s so easy for bands to do “cover” versions of other bands music.
It’s difficult to see how this can be squared with the Berne Convention. Berne is clear that copyright protection is not dependent on registration, so it’s hard to imagine how any post-publication registration can be required to maintain a copyright of an out-of-print. The whole point of copyright is to encourage publication by providing authors with the right to prevent copying. Without it, the only way you can protect what you right is to keep it locked up.
Greg Weeks may be right that this is being justified as a “compulsory license” like that for music, but that’s dubious in reasoning. A band isn’t re-releasing someone else’s recording. They’re creating their own adaptation with the same or similar lyrics sung by them and music played by them. If they lack talent, their music license won’t earn them more than a pittance.
In contrast, this re-publisher is doing nothing creative or original. It’s simply scanning and OCRing the original. Licensing might (emphasis on might) allow someone to create new stories with the same characters and themes as those of an out-of-print author. But it can’t be stretched to justify a mere reprint that’s word-for-word the same. That’d be like using out-of-circulation Beetle CDs to release your own Beetle collection.
In short, by publishing a book but not keeping it in print, this law says you lose your copyright. I can see why even pirates are up in arms about this. This is the French government running a pirate fleet.
I blame the roots of this vileness on Google. The basic reasoning of the Google Book Settlement was that a book has no right to be out of print, that someone (meaning them) had the right to publish it, at least in part and online. Behind that was the rather strange reasoning that everyone has a ‘right’ to read anything they want–and not just by the slow process of interlibrary loan.
You can see that same warped reasoning in the description of the French law linked above: “The Bibliothèque Nationale de France (equivalent of the British Library) is to compile a freely accessible online database of all works published in France before 1 January 2001 that are not being commercially distributed by a publisher and are not currently published in print or digital form.”
I’ve read the Berne Convention, which governs copyright in France and virtually every other country, along the the official commentary that accompanies it. Nowhere does it make copyright dependent on keeping a book in print. The closest to that is a 1970s-era provision that permits undeveloped countries to publish translations if the original isn’t translated into their tongue within a certain period of time. And that translation will of necessity be costly and require some literary skill. It isn’t simply an unauthorized reprint. It is a sort of compulsory translation license in exceptional circumstances.
If you examined what the original GBS said, as opposed to what the tech press was gushing about, what the settlement did was strip the author of every out-of-print book in the world of his U.S. (and only U.S.) copyrights. This was concealed behind vague language about “copyright interests.” It wasn’t the ‘interests’ that were being discussed. It was the rights of copyright itself. Google could publish your stuff without your permission.
At the time, my hunch was that Google’s rather devious lawyers were hoping that other countries, once they found that out about that, would do something similar with their copyright laws and the protection accorded to foreign authors.
That seems to be true of the French with a bizarre twist, they’re only applying it to books “published in France before 1 January 2001.” The French government is screwing its own citizens and those foreigners who made the mistake of publishing there.
Interestingly, the French law even has some of the same exceptions the GBS had: illustrators and authors in collections are exempt from this theft. The GBS did that because the Authors Guild was giving them cover is an illusionary class action lawsuit, while there was no group of illustrators offering similar cover. But the French law, being a mere copyright grab, doesn’t need to have that exception and yet there it is. The French legislature (and their publisher cronies) are copying the Google settlement so mindlessly, they don’t even realize that their theft doesn’t have to make that exception.
Let me be clear. I’ve got no dogs in this fight but those every author has in good, sound copyright protection with proper exceptions for fair use. My books are safe, since everything I’ve done remains in print and nothing I’ve done has been published in France. If this law stands, however, I may add a notice in revisions and digital versions that “For the purpose of French law, this book is not published in France.”
You might want to check out the Action on Authors’ Rights link above. There are many, many complications of this law that will make life very difficult even for authors who know about this law and want to protect their works. Essentially it changes the legal ground from a publisher having to prove it has the right to publish a work to an author having to prove that he or she is the author and has retained all the rights to their work. That can be messy, particularly when an author has to deal with a government bureaucracy that can’t be held accountable for its blunders and misdeeds.
For the the record, I was one of seven authors who delayed the Google Book Settlement long enough for an effective opposition to it to develop. That opposition, particularly letters from authors to the judge, then effectively killed the scheme.
When that happened, I’d hoped this horror was over, although a professor in Germany warned me it was not, that other vile schemes were afoot. He’s proved all too right.
Crony capitalism, it seems, is as alive and well in France as it is in Hollywood, in the financial district of NYC, and within the DC beltway. Mickey Mouse may be protected by copyright forever. A French novel someone published in 2000 that fell out of print may be about to lose its copyright.
–Michael W. Perry, author of Untangling Tolkien