Publishing contract

A publishing contract is the contract by which the author of a work of the mind, or his or her successors in title, assigns to a person known as the publisher, on specified terms, the right to manufacture or have manufactured copies of the work in quantity, or to produce or have it produced in digital form, the publisher undertaking to publish and distribute it. This definition appears in Article L. 132-1 of the French Intellectual Property Code, and the contract is governed by Articles L. 132-1 to L. 132-17-8 of the same Code.

Formation of the contract

The publishing contract must be recorded in writing, failing which it is relatively void, a nullity that only the author may invoke. It is subject to the general formal requirements for assignments, each right assigned having to be separately mentioned together with its field of exploitation. The author-funded contract and the shared-cost contract, in which the author finances or shares the manufacturing costs, are not publishing contracts and are governed respectively by the rules on contracts for services and on undisclosed partnerships. A right of first refusal granted to the publisher over the author’s future works is valid only if it is limited to specified genres and to five new works or to the author’s output over five years, in accordance with Article L. 132-4 IPC.

Obligations of the parties

The author warrants to the publisher the undisturbed exercise of the right assigned and delivers the subject matter of the publication on the agreed terms. The publisher is bound to manufacture the work within the agreed period, to ensure the permanent and continuous exploitation of the work and its commercial distribution, to render accounts at least once a year and to pay the remuneration due. The remuneration is in principle proportional to the retail price net of tax, a lump sum being permitted only for certain exhaustively listed editions. For digital publishing, the contract must contain a separate part, set the economic terms of digital exploitation and provide for a clause reviewing those terms.

End of the contract

The contract ends on expiry of its term or by automatic termination where the publisher destroys all copies, is placed in judicial liquidation without the business being taken over, or fails to exploit the work after formal notice. For books, the lack of permanent and continuous exploitation, the failure to render accounts and the failure to pay royalties give the author a right of termination governed by statutory time limits following formal notice. Disputes come before the courts with jurisdiction over literary and artistic property, and non-performance may be pursued both on a contractual basis and, for exploitation outside the scope assigned, as infringement.

Key points

The publishing contract places the publisher under an obligation to publish, to exploit the work permanently and continuously and to render accounts, in return for an assignment of rights recorded in writing and remuneration that is in principle proportional. Digital clauses must be set out in a separate part. For the author, check each year that accounts have been rendered and that exploitation is effective, since both condition the continuation of the assignment.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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