legal aspects thomas glückstein - training programme for publishers from the arab world - cairo, 26...

Thomas Glückstein - Training Programme for Publishers from the Arab World - Cairo, 26 March 2009

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Training Programme for Publishers from the Arab World

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Thomas GlücksteinLausen Rechtsanwälte – Residenzstraße 25 – 80333 München – Germany

www.lausen.com

[email protected]


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Part I: Basic principles of Copyright law

Part II: Publishing contract / author‘s agreement

Part III: Discussion, questions

Agenda – legal aspects


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I. Basic principles of copyright law

Why legal aspects are important for publishers?

• Publishers not sell “paper”, but the story, the poem etc., i. e. the content => the “work”

• The “work” is protected by copyright law

• Knowledge of basic principles of copyright law is crucial for publishers


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1. What is protected under copyright law?

=> „Work“ = all personal intellectual creation

Art. 138 of Egyptian law on the protection of intellectual property rights:

“Work: any created literary, artistic or scientific product, whatever its type, mode of expression, significance or purpose of its creation.”


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Art. 140: „Protection under this Law is conferred to authors of literary and artistic works, and particularly the following works:

(1) Books, booklets, articles, bulletins and any other written works;

(2) Computer programs;(3) Databases (...);(4) Lectures, speeches (...) when recorded(5) Dramatic and dramatic-musical works, and pantomimes;(6) Musical works with or without words;


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[protected works:]

(7) Audiovisual works;(8) Works of architecture;(9) Works of drawings (...), sculpture (...);(10) Photographic and similar works;(11) Works of applied and plastic arts;(12) Illustrations, maps (...);(13) The title of the work if it is inventive.


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Protected parts of a publication:

• the manuscript• photos• illustrations, drawings• the title of the work


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“Protected” means:

• Only the author is entitled to decide, if and in what manner his work is used (published)

• Author is entitled to prevent any use of his work other than he has agreed with


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What is not protected?

No protection of (Art. 141):• ideas;• concepts;• principles;• discoveries;• data.

=> No „creation“


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How long is a work protected?

• throughout the life time of the author

• and for 50 years from the date of his death (Art. 160) => copyrights are exercised by the heir / universal successor of the author


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2. How is the work protected by copyright law => what rights has an author?

a) Moral rights (Art. 143): perpetual, imprescriptible, inalienable (any disposal is null and void)

b) Exploitation rights (= economic rights to use the work):can be transferred to a third party (e. g. by a “publishing contract”)


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2. What rights has an author?

a) Moral rights include (Art. 143):

• The right to make the work available to the public for the first time

• The right to claim authorship => Author can decide whether the work bears an author's designation and what designation is to be used.

• The right to prevent any modification considered by the author as distortion or mutilation of the work


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2. What rights has an author?

b) Exploitation rights:

Author has got the exclusive right to authorize (e. g. the publisher by a publishing contract) or prevent any form of exploitation of his work, particularly through:

• reproduction• translation• adaptation• making the work available to the public in any manner (including

internet)• etc.


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How does the author deal with his copyright?

• Economic rights (exploitation rights) can be transferred to a third party (e. g. to the publisher) => granting of “exploitation rights” to the

publisher by a publishing contract

• Moral rights are not transferable


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3. How to grant exploitation rights?

The transfer shall (Art. 149):

• be certified in writing => Publishing contract between author and publisher

• contain an explicit and detailed indication of each right to be transferred with the extent and purpose of transfer and the duration and place of exploitation


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• The author remains the owner of all economic rights other than what he has explicitly assigned („in dubio pro auctore”)

• Authorization by the author to exploit any of the economic rights relating to work does not mean authorization to exploit other economic rights relating to the same work

=> the transfer of rights of the author by the publishing contract is the basis of publisher’s business!


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Checklist for granting exploitation rights:

a) What economic rights shall be transferred?

b) In what extent the rights shall be transferred?


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Publisher

Author

printed books

offline (audiobook, cd-rom)

movie

stage

internet/online broadcast

merchandising

Publishing contract

paperbackhardcover

exploitation of the rights


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merchandising companyforeign publishing company

film company

publishing a foreign work by an Arab Publisher

author Arab publisherPublishing contract

publishing an Arab book in other country

foreign publishing company Picturising a book

Licensing agreement

Licensing agreement

Licensing agreementLicensing agreement


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a) Examples for economic rights:

– right of reproduction– right of distribution– right of adaptation– right of making available to the public (e.g. through

computers, internet, networks) etc.– right of recording on media (CD-Rom, DVD etc.)– right of translation


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b) Checklist for extension of transfer of rights:

1. exclusive or non exclusive?2. what territory?3. time limit? 4. transferable to third / sub-licensable?


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4. Limitations of copyright

In some cases the author‘s copyright is limited => The author may not prevent third parties (i. a.):

• make a single copy of the work for one‘s exclusive personal use;• make excerpts or quotations for purpose of criticism, discussion,

information;• Reproduction of short extracts for teaching purposes.

provided that:- the author‘s name and the title of the work are mentioned- no violation of legitimate interests of the author


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5. Infringements of copyrights - legal consequences

In case of infringement of any copyright the president of the competent court may order conservatory measures:

– discontinuance of publication, reproduction of the work– Seizure of copies of the work– Seizure of the income made as a result of the

exploitation of the work


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Infringements of copyrights can be punishable:

• selling, putting in circulation a work without a prior written authorization form the author

• knowingly imitating or selling a work• infringing any of the moral or economic rights• etc.


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• imprisonment for a period of not less than one month• fine of 5.000 – 10.000 pounds• confiscation of the infringing copies, those obtained as a

result of infringement, equipment used to commit the infringement

• closure of the establishment used by the convicted person


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I. Publishing contract

• Publishing contract = legal core of publishing business

• Publisher is only entitled to exploit the work in the kind of use which he was granted


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Form of the publishing contract:

• written form of publishing contract is not required by the law (“shall be in writing”, Art. 149)

• but written form is reasonable (even if you trust the author)


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Reasons for a publishing contract in written form:

• Art. 149: “transfer shall be certified in writing”• Written form enables publisher to prove his

exploitation rights to third – licence agreements => “Chain of title”– violations of your exploitation rights by third

• Avoidance of conflicts with the author


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What would you draft?

=> Brain storming!


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Checklist:

1. General provisions (parties, work)2. Manuscript delivery (when due, what format, what to deliver)3. Rights granted (which rights, time period, territory, exclusive)4. Author‘s designation5. Author’s warranties6. Publication (date, style)7. Remuneration (advance, royalties) and accounting8. Revisions of the work9. Option on next work of the author10. Non-competition-clause11. Termination of the contract12. Miscellaneous (applicable law)


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1. General provisions

• parties of the contract (incl. phone number, fax-number, e-mail-address)

• description of the work• (working) title of the work, • genre (fiction, non-fiction etc.)• number of pages/words


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2. Delivery of the work

• when due? Date of delivery• what format ?• form of delivery? Printout, electronic form etc.• what to deliver? Photos, illustrations?• consequences if delivery is delayed (termination of the

agreement? Re-payment of remunerations?)• corrections of the manuscript by author


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3. Rights granted

a) which rights are transferred?

– hardcover– paperback– CD-/DVD– online/internet– audio book– adaptation as movie, drama– translation– merchandising


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3. Rights granted

b) extent of the transfer of rights => “magic seven”:

(1) exclusive / non exclusive(2) limit of territory / no limit of territory(3) limit of time / no limit of time(4) limit of scope / no limit of scope(5) adaptable / non adaptable(6) transferable / not transferable (7) sub-licensable / not sub-licensable


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4. Furthermore, the publisher should reserve the rights to decide:

– layout and book cover– final title of the work– number of copies– retail sales price– marketing, promotion


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5. Remuneration of the author

• lump sum?• royalties on each copy of the work sold:

– depending on type of publication (hardcover > paperback)– depending on number of copies sold => increasing

percentage the more copies are sold• royalties on exploitation in other ways (e. g. exploitation of

electronic book rights, merchandising rights etc.)• advance (against and on account of all amounts due to author

under the agreement)?• combinations


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6. Further provisions

• identification of the author• free copies for the author• revisions of the work by author for further

editions (important for non-fiction books)• non-competition clause • option on the next work of the author• applicable law


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7. Example

please see “author’s agreement”


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I. Discussion


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I. Contact for further questions:

Thomas GlücksteinLausen RechtsanwälteResidenzstraße 2580333 MünchenGermany

E-mail: [email protected]: 0049 / 89-242096-0


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Thank you for your attention!

legal aspects thomas glückstein - training programme for publishers from the arab world - cairo, 26...

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