Alert to NWU members and other writers
As we’ve noted previously, many countries have been considering, and some have adopted, “orphan works” laws that allow anyone who claims they can’t find who holds the rights to a work to use it without permission.
Canada has had such a law, but it is very limited. Now countries throughout the European Union are considering much broader laws.
The first of those laws to go into effect, and the worst yet, is in France. Like some of the laws proposed in other countries, it extends beyond so-called “orphan works” to authorize Extended Collective Licensing (ECL) for scanning and digital distribution of any book that has been distributed in France and that is now deemed “out of print, without even the pretense of a search for the holders of electronic rights.
You can opt out of having your work licensed through this scheme, but only after a book containing your work has been identified by the operators of the scheme, “ReLIRE”, as out of print in France.
You may be affected even without knowing it. The NWU’s Grievance and Contract Division has long recommended that authors get language included in contracts that gives you the right of approval, or at least a right to notice, for licensing of translations, foreign editions, or other subsidiary rights. But many current contracts may lack such language, and publishers don’t always comply with contracts.
So a publisher of a book by you, or an anthology or collection including a story, article, poem, etc. you have written, might have authorized an edition in France, or designated a US or other edition as simultaneously published in France among many other countries around the world.
The first list of works identified as “out of print” in France, and due to be digitized unless the rightsholders opt out, was made available last month. Browsers immediately discovered that it included works by many prominent, easily-found US writers including NWU member Ursula K. Le Guin.
No attempt had been made to find these or any other writers. You are expected to figure out for yourself that your work might be included, search the database to find your work, and fill out the forms (in French), to opt out. Or your work is fair game to be digitized and made available without your permission from France to readers worldwide.
It’s complicated because the database and all the instructions and forms are in French only. A simple author search won’t turn up stories, articles, or poems included in anthologies or collective works. Works are identified, of course, by their French titles, which may not be literal translations of their English titles. There are many spelling and transcription errors, and only exact matches are shown in search results.
We are extremely grateful to Gill Spraggs of Action on Authors Rights (UK), one of our allies in the successful fight against the proposed Google Books Settlement, for preparing a guide in English to how to find if your work is included in the French “ReLIRE” database, and to opt out.
This includes links to translations of the French forms and instructions. French author Lea Silhol has posted a guide in English to how to search for your work in the ReLIRE database and what to do if you find your work listed there, as well as links to other resources.
(Since your first reaction may be, “But that would be highway robbery,” we can’t resist the temptation to note that Gill Spraggs, in addition to her talents as a poet, translator, editor, and activist, is actually one of the world’s leading scholarly authorities on — quite literally — highway robbery, which was the subject of her Ph.D dissertation at Cambridge and her popular cultural and literary history, “Outlaws and Highwaymen“.)
The NWU and other US writers’ organizations including the Science Fiction and Fantasy Writers of America (many of whose members’ work has turned up in translations and anthologies in the ReLIRE database) are working on collective responses. This law and others like it are clear violations of other countries’ obligations to US writers pursuant to the Berne Convention and other copyright treaties, and we will be asking the US government to make appropriate diplomatic protests on our behalf.
But we can’t search for all our members’ work.
So the first step — both for your own self-protection and to lay the basis for collective action — is for you and any other writers you know to check whether any of your work has been included among works slated for digitization in France. This is highly likely if any of your work has ever been issued in France or in French translation, including as part of any collective work and as may have happened without your knowledge.
Please let the NWU know if you find any of your work included in the French “ReLIRE” database.
NWU members can post what you find to the NWU Book Division e-mail discussion list, which will help other NWU members know what sort of work you found in the French database, and how you found it. Or, if you prefer to keep your grievance confidential, you can contact either of the NWU Book Division Co-Chairs.
(posted by EHasbrouck on April 29, 2013)