Copyright and Contract Law in International Publishing

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It is a truism that publishing is an international business, and the Frankfurt Buchmesse itself was a strong indication of this, with separate halls for different countries and international stands, presentations going on simultaneously in German and English (and no doubt several other languages) throughout the conference areas. One book and one author can have enormous influence and engender demand in many countries—and the chance to bring out an important book for a local domestic market that was originally written in a different language and published in another country can be an important market opportunity, one which publishers and translators worked hard at during the 2019 Book Fair.

The science world is truly international but, on the legal side, we know that the laws of copyright and contracts are ultimately local and national, notwithstanding the intended normative effect of international treaties. If we are dealing with authors, publishers and distributors in different countries, there are important legal questions about which law governs these relationships—and copyright enforcement brings yet more questions (e.g., is an infringement in one country necessarily an infringement in another?). Collective licensing (whether through VG Wort in Germany, the CLA in the UK, or CCC in the US) can also operate quite differently.

How can publishers navigate the differences in national laws while trying to manage an international business? What rights and permissions are they actually acquiring through contract and their negotiations, or through collective licensing arrangements, and what rights can they use or enforce in local markets, particularly where author and publisher reside and rely on different countries and legal traditions?

Copyright laws governing the scope of protection for authors such as the minimum duration of rights are largely normalized in international treaties (primarily Berne, TRIPS and the WIPO Copyright Treaty). However, those treaties are silent about the nature of the contractual rights that can be negotiated between authors and publishers, and ultimately with distributors and other agents—and there are no true international contract treaties.

Thus, authors in certain countries such as Germany and France often cannot fully transfer copyright interests to publishers, although they often can provide exclusive commercial licenses. Some “author’s rights” countries even require, or forbid, certain contractual provisions in publishing contracts to protect the authors. The ability to bring a copyright infringement case may in some countries require participation by authors even if enforcement rights have been assigned to publishers.

The recent 2019 EU Directive on Copyright in the Digital Single Market (DSM) is meant (in part) to reinforce the importance and centrality of the author, journalist and artist when dealing with technology platforms, and some may view this as widening the gap between Europe and more market-oriented IP regimes such as that in the US. The DSM also creates EU-wide requirements for greater transparency in author-publisher contracts, although this may not represent a significant departure for German publishers, as to some extent these obligations are based on previous German copyright-contract laws but will require review and possible contract adjustments by other publishers.

One major issue that arises in publishing agreements is what lawyers refer to as “choice of law” – that is, is it the law of the author’s home country (which might be very protective), the law of the publisher’s home country (which may be less protective), or the law where a book is published (which may be a third country) that governs the relationship between the parties.  Given the many possible variations, especially if as often happens in science there are multiple authors from different countries, how can publishers organize their contract negotiations?  Certainly, one approach can be to simply insist that the law of the country where the publisher is located must govern the publishing contract (although it may be unpredictable whether that country’s law serves either party’s interest best). Even then, a court in a country with strong protective traditions around author’s right issues may not agree that local laws can be ignored completely. Another approach might be to accept that governing law will always be that of the author’s home, but that can require some significant business flexibility on the part of the publisher if for example further distribution rights or royalty provisions are inconsistent (or, frankly, if there are multiple authors).

One tack that I have taken in negotiations over publishing agreements is to distinguish different stages of the work on a book in evaluating what law should apply.  An author creating trade works (and, as the cliché goes, working in her own garret) might reasonably expect that core authorship questions (what qualifies as authorship, the inherent rights and duration of those rights) should be governed by her own country’s law. On the other hand, it might be appropriate to address issues more properly “belonging to” the publisher, including such matters as distribution, sub-licensing and enforcement, under the publisher’s home country law.

This is admittedly a simplistic approach, and there are difficult nuances with respect to the rights being transferred or licensed to a publisher—after all an author may say that she cannot transfer rights that she does not have or that she cannot transfer by contract.  Nonetheless I think it would be fair to assume that in an international negotiation the parties would want to give each other the benefit of the bargain, and a legal understanding that the law of the country in which the publisher resides should broadly govern questions about future distribution would be sensible. I also think that such an approach is not as radical as it might appear at first glance because, in the absence of agreement between the parties, a court might well analyze the contract in precisely this way – apportioning authorship issues to the author’s home law and distribution issues to that of the publisher.

Whether this bifurcated approach is used by publishers, or not, it is critical for them to review and consider which laws are the most applicable for their publishing contracts. And the question may not be for the lawyers alone: for example, it is possible that something as simple as a revision to royalty reports could ameliorate some of the concerns of an author.

Mark Seeley

Author: Mark Seeley

Mark Seeley consults on science publishing and legal issues through SciPubLaw LLC (http://scipublaw.com), and comments regularly on publishing, licensing and copyright issues. Seeley retired as of January 2018 from his position as Senior Vice President & General Counsel for the science publisher and information analytics provider Elsevier. Currently he serves on the Board of Directors for the Copyright Clearance Center, and is a member of the Copyright Society of the USA and the Society for Scholarly Publishing. Previously Seeley served on the Copyright Committees of both the International STM Association (from 2004-2016 as chair) and the Association of American Publishers. He is currently teaching international copyright law as adjunct faculty at Suffolk University Law School in Boston.

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