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Electronic Publishing

and the digital revolution

Wednesday 22 March 2006

by Rany Joseph Sader

The publishing sector, much alike other sectors, was affected by the digital revolution, since most of the traditional publishers receive offers to publish, distribute, and market some of their special titles electronically: new technologies emerged and developed publishing such as electronic distribution, web-based publishing, print on demand and other new technologies. This electronic development has affected regular publishing, since many publishers or distributors use the policy of selling their titles on their electronic websites, and collect their prices by credit cards.

It is worth mentioning, that the electronic publishing industry, is considered as an integral part of this international digital revolution, especially that most of what is being published on the web pages has an electronic publishing feature, where new horizons shall be opened to the publishers, as well as hobbyists. Therefore, the electronic publishing has witnessed lately, incomparable flocking into the publishing world in general.

Practically, the electronic publishing is a new means of information communication and publishing, as these information were passed on to many generations through several means, the printing paper publishing, known as the traditional publishing, is the latest.

Practically, the “book” introduction to the world of technology is considered an easy task. We notice nowadays that most electronic works of books and encyclopedias are soft copies to paper works previously published under a regular form. This is made possible either by an easy and uncomplicated manner such as using the inexpensive scanning technology, or by setting up a software that includes a base of advanced information based on hyperlinks or search engines.

Many publishers, particularly those specialized in law, as Kluwer, Lexis Nexis, Dalloz, Jurisclasseur and Sader, have web sites on the internet through which they publish lots of information, some for free access and others against charge.

Publishing benefits from data processing through the following means:

- Selling paper books and/or electronic references (CD Rom) through the publishers’ sites, organizations, associations or others.

-  The right to copy or print one copy of the work or the research which summary is published on their web sites, against a prefixed charge per each download or printing.

-  Annual subscription in their data banks for a prefixed annual fee.

-  Subscription in their data banks and paying a charge for download time and the volume of the downloaded information.

This makes many publishers (especially in our Arab world) unqualified to accompany the occurring development, and in our opinion, we will witness the collapse of many, strictly publishing houses and the emergence of some others which will play a significant roll in future in the electronic publishing field. Only some of firmly established and qualified houses will risk to enter the digital world and succeed thus becoming alone of both paper and electronic heritage.

A - Practical comparison between electronic publishing and traditional publishing:
Considerable differences exist between electronic and regular publishing, some are positive and other negative, which can be summed up as follows:

1- Speedy communication to the public:

Speed is the most distinctive characteristic of electronic publishing; the reader can buy his electronic publication, pay its price and receive it through downloading to his computer and/or print it (printing on demand) and start reading it immediately, within few minutes without any transportation outside his house and/or work place, and without paying any taxes, freight or any other expenditures.

The speed that characterizes the electronic publishing positively affects the publishers as well since they can publish information and electronic publications at maximum speed and relatively low cost.

2- Printing quantum and cost:

As far as traditional publishing is concerned, the printing quantity impact on the cost of a single copy, and accordingly its price, is considerable. It is well known that the larger the printing quantity, the lesser is the cost of a single copy. For this reason, the high cost of law books internationally is due to the shortage of its demand in comparison with some other printings such as fiction, love stories, cooking books and others.
The quantities of printing material have a negative effect on the capacity of the available warehouses, thus resulting in an additional cost to the publisher.

As regards the electronic publishing, the cost of the electronic copy (e-copy) or the copy printed on demand is the same, especially, that the cost of setting up an electronic web site as well as the use of electronic commerce (e-commerce) is inexpensive and relatively within reach of everyone. Consequently, the costs born by the publisher remain the same regardless of the quantity. Furthermore, granting the reader the right to print one copy of the work for fee and/or the right to download the work electronically, contributes in reducing the cost of the single copy to the publisher, which results in the increase of his profits, considering that the cost of making the copy (paper, ink...) has become at the reader’s expense and not the publisher.

This does not prevent us from drawing the attention to the fact that the problem facing the electronic publishing remains in the various softwares adopted in such publishing and the high cost of some: Word from Windows and PDF are only examples. Such variety has a negative effect on the reader who find himself in a permanent struggle with development, high quality and the program price more than the content of the electronic book, and in a certain way limits the electronic readers’ number internationally, especially that the reader has to learn how to use the software first, before starting to read the electronic book.

Electronic publishing remains the best means to the publisher, since it reduces around 50 % of the production cost and regular printing, especially that the publishing contract remains by nature an aleatory contract.

3- Quality:

As previously mentioned, publishing cost through printing is high and for this reason most of the publishers rely on accuracy in selecting the publishable especially that traditional publishing remains a trade work requiring most of the time big capital due to paper cost and its internationally noticeable increase. For this reason, publishers seek the best titles to avoid any possible trade loss.

In electronic publishing, however, the cost is low, as previously mentioned, and may have a negative impact on the quality of whatever may be published. Wrong information are published by some persons while others publish whatever they want without any control or censorship. This statement does not negate the fact that are many electronic publishers who adopt editing policy and focus on the layout and fine quality.

It is worth mentioning, that many authors, who were not fortunate with any publisher, adopted the unilateral electronic publishing means, a matter which may affect quality.

4- Violation of author’s rights and related rights:

The positive development occurring in the electronic publishing field, concerning the rapidity and facility of obtaining the required information, has undoubtedly a negative side: the easy violation of the author’s and related rights (Cyber piracy). The facility of data communication (Copy & Paste) and its exploitation without the authorization of the right owner and/or without mentioning the source is considered nowadays one of the most widely spread piracy operations. In addition, the means used to protect the works such as the Encryption are most of the time useless due to the possibility and even the facility of decoding the password. For this reason, we face a big number of violations such as publishing books and/or songs and/or movies and/or photos, electronically, without obtaining the permission of the author or the right owner.

It is worth mentioning that until today, there is no 100% secured and guaranteed way to protect the website against theft and piracy. This makes the electronic publishing an actual danger, considering that means of piracy concerning the printed books is limited to its photocopy and/or re-print without the author’s authorization, and which in spite of its illegality, is expensive due to the necessity of producing the counterfeited work.

Many publishers have resorted to different means to protect their programs and the works published by them like using the PDF program or prohibiting Copy & Paste or granting the right of printing a hard copy without the right of electronic copying or giving passwords.

Examples on violations are numerous, such as:

-  Publishing the words of the songs on the internet without the permission of their authors.
-  Copying, selling and distributing data bases without authorization.
-  Distributing the electronic work without the permission of its author.
-  Downloading unauthorized programs on the computer. A decision was rendered on 18th November 2004 by the public prosecution at the court of cassation, the first of its kind in Lebanon, in which it has put one computer engineer under arrest for copying computer programs without the permission or the authorization of the right owners of the mentioned programs.
-  Publishing photos and artistic works on the internet without any authorization.
-  Publishing articles, photos and pornographic movies or against religion, or violate the right regarding the persons’ image or others on the internet, saving or distributing them on compact disks Such works remain in general subject to the criminal law and the general laws in effect.

5 -Mistrust in Electronic Commerce:

Mistrust in electronic commerce in our Arab world remains the largest problem, although some countries and associations like are concerned with the edification of the advantages of this commerce. In addition, the project “e-comleb” financed by the European Union sat down the final touches of the general framework of electronic commerce in Lebanon.

The lack of confidence cannot be translated as a lack of trust in legal informatics itself, especially as regards the specialized legal data bases such as “Sader’s Compendium of legal informatics:: Lebanese laws”, acquired by a significant number of law offices, judges and public entities, as a basic reference source thus confirming the confidence of the legal community in informatics and its positive impact on its professional life.

We must stress, in this respect, on the importance and the necessity of teaching the law on informatics , legal informatics and electronic commerce at schools in Lebanon, for its positive impact especially on the development of the electronic publishing, and the legal community in general.

We must not neglect mentioning the concern of the Lebanese Ministry of Justice, which established lately the first electronic law library, and the Beirut Bar Association (which formed lately the first information technology committee in the history of the Association) and its effect on law which will soon have an impact on the electronic publishing and its development.

On a worldwide scale, the electronic commerce considerably affects both the world of traditional publishing and electronic publishing, since many libraries and publishers started to market and sell books and hard copy publications on the internet (the most significant of which remains the popular site www.amazon.com). Some publishers adopted the print on demand and/or send files electronically such as electronic files against a remuneration considered as author’s right.

6 - Transitory conflict of laws and the competent court to adjudicate disputes:
The essential problem concerning the electronic publishing is in general the same relating to electronic commerce, which is the problem of conflicts of law in time and the problem of the competent court to adjudicate disputes, which fall outside the scope of this study.

Nevertheless, it is necessary to remind briefly the following:

-  It is necessary to insert a clear clause concerning the territorial jurisdiction and the governing law, should any dispute arise regarding the contract, as an implementation of the principle of contracting autonomy

-  Most of the international conventions concerning the international sales (The Hague 1955 to Vienna 1980) gave the jurisdiction to the law enforced at the vendor’s place. It is possible, however to insert a clause in the contract that gives jurisdiction to the law of the place of execution of the main obligation, which is the obligation to deliver, specially that there are many delivery problems starting from non-delivery to delay of delivery and the delivery of bank statement that differs from what the reader has paid or amount which the author has received or believed to be paid on completion of the electronic contract.

These differences make some people believe that the electronic world, and accordingly the electronic publishing is sunken in a swamp of law vacuum owing to the non-existence of various legislations that tackle these subjects.

This belief is wrong: The general legal rules are to a large extent applicable on electronic publishing due to its being governed by the Law on the Protection of Literary and Artistic Property no. 75/1999 especially as regards the written texts, photos, drawings, music, layout, addresses, the executed program and others of the innovative elements. In addition, other elements are protected and regulated by other laws such as those concerning the trademarks, criminal law, printed materials and others (unfair competition...).

This wrong belief has sunk many publishers in lots of problems, when they converted their publications especially the encyclopedias, dictionaries, important paper books, into electronic, and published them on disks (CD Roms) or on the internet at their web sites, without the approval of the author or authors.

For this reason, it is necessary to state that the first thing the publisher must do when he decides to change the books published by him from paper to electronic, is to review all the contracts previously signed by him and, in general, be aware of the extent of the rights granted to him to exploit the work, especially that the rights which the author assign for his interest are construed in a restrictive manner. For this reason changing hard copies to electronic ones without obtaining the author’s explicit approval, is considered an infringement to his rights.

B- Electronic publishing Contracts:

The right owners especially the publishers, are trying to exploit all or most of the works, by all means, the latest and most significant is the electronic publishing.

The author and the publisher are required to review all the contracts previously signed by them, due to the fact that the overwhelming majority of the traditional publishing contracts did not include any clause concerning the exploitation of the electronic rights.

Furthermore, the publisher, before publishing any electronic work and if the contracts signed or to be signed by him do not include the right of exploiting the rights electronically, is required to enter into fresh negotiations with the right owners to obtain an explicit authorization for the electronic publishing.

Sending a written letter, by the publisher, to the right owners, including the authors, in which he explains the situation, and requests what is called as “publishing authorization”, and receiving their Replies with the phrase “with approval” is deemed sufficient to obtain this right. In case of their refusal and/or their silence, the publisher must negotiate with them, and obtain a written approval at the risk of legal prosecution, especially that the right of exploitation of the hardcopy of the book assigned by the author to the publisher doesn’t mean assignment of the electronic exploitation right of the work, a matter which has misled many Lebanese and Arab publishers. The Lebanese law is clear in this respect.

It is worth mentioning, that the publisher may prohibit the author of the hard copy of the book from the exploitation of the same work published by him for many reasons such as the use of the same layout

The electronic publishing contracts are similar, to a large extent; to the traditional publishing contracts:

1 -Bilateral partnership contract:

The contract is considered the starting point of all the electronic publishing activities. The electronic publishing contract is a bilateral contract in which both the writer and the publisher agree on mutual specific obligations, and rights. This contract is effective only after being signed by all parties.

It is worth mentioning, that both the publisher and the author are required to take the maximum precautions when drawing up such contract due to the fact that its effects may affect their future rights.
It goes without saying, that each time the electronic publishing contract is drafted in the spirit of partnership contracts, the chances of its success, continuance, and development of its effects between the author and the publisher are increased.

It is worth reminding that the electronic publishing operations are mostly collective operations, and accordingly the rights of all co-authors must be respected.whatever their number may be.

2 -The deposit of the work with the Ministry of Economy and Commerce:

It is unnecessary to deposit the work with the Ministry of Economy and Commerce (Intellectual Property Protection Office) to protect the literary and artistic works. The work, in this respect, means as: the site or the software itself (which is protected by article 1 of law no. 75/1999) and the information inscribed in it (when it is not considered of the public domain). The author of any artistic or literary work shall, as a result of the creation of the work, have an absolute property right over his work and shall reserve all his rights without having to follow any formalities” (article 5 of law no. 75/1999). The deposit is a presumption that the work is the depositor’s property, unless otherwise established by all means of evidence.

3 -The condition of writing the electronic publishing contracts:

The electronic publishing contract is considered among the contracts for the exploitation of the authors economic rights, which must be drawn up in writing, regardless of their subject, at the risk of nullity between the contracting parties. Accordingly, the electronic publishing contracts shall not be oral or implied, but must be written and signed by both parties.

A unified sample of traditional or electronic publishing contract does not exist in Lebanon or in any Arab country.

These contracts varies from one publisher to another (taking into consideration his specialization), or from author to another, or from subject to another.
Practically, every publisher of a minimum professionalism has a sample of a regular publishing contract that includes a regular publishing clause and/or a sample of a special electronic publishing contract, to his interest, through which he is willing to acquire the largest number of rights at a lesser cost.

This sample shall not be considered as leading to an adhesion contract, so every author must review it carefully, asking the necessary questions, modifying whatever to be modified so that the contract meets his expectations. It is to be noted, that many of the samples used in Lebanon include clauses contrary to the laws in effect concerning intellectual property in general.

Hence, every party must resort to specialized attorneys considering that the electronic publishing contracts are complicated and must not ignore that the author is the “right owner” and accordingly has the right to decide the manner, conditions and means of exploitation of his intellectual production according to his expectations, and add to the contract the clauses that are in line with these expectations, examine its clauses and modify it before signing it.

4 - The content of the electronic publishing contract:

The electronic publishing contract regulates the rights and obligations of the author and the publisher.

The contract must set out in detail the rights covered by it, be limited in time and space, and imperatively provide for the author’s participation in a percentage of the revenues resulting from the exploitation and sales operations.

It is necessary to emphasize that the assignment by the author of any of his rights must always be restricted to this right only, taking into consideration that the electronic publishing contract is among the contracts that must be construed in a restrictive manner (articles 17 and 19 of law no. 75/1999). Moreover, granting the publisher the right to distribute the work fixed on paper shall not be construed as giving the publisher the right to distribute it electronically.

Moreover, the author’s assignment, to the publisher, of the right of distributing the work electronically through electronic means (CD Rom), prevents the publisher from publishing the work on the internet and vice versa. This specific characteristic of the electronic publishing contracts requires clear and explicit delimitation of the rights assigned.

The right owner may assign his electronic rights to one or several publishers. The author must be cautious not to assign all his rights at one time but fraction or reserve some of these rights to himself for future exploitation. For example, the assignment of the electronic publishing right of his book on the internet to a well-known publisher, and the assignment of the right of adapting his intellectual work to a Game to another publisher specialized in electronic games.

As regards the regular publishing contracts previously signed by him, it is very important for the author to review, even scrutinize it, to clear up the scope of the rights assigned, especially that most of the previous contracts have not mentioned any clause regarding the electronic exploitation of the contract. In case it is not mentioned in the previous contract, the author should be aware of the fact that the exploitation rights of his work electronically are his property and must not assign any of these electronic rights before he receives a new clear and explicit offer, reserving his financial rights (royalties), from the publisher.

As regards the publisher, it is extremely important for him to be aware of the importance of reserving to himself the publishing rights of the work intended to be exploited electronically through ordinary means, in view of the effect of the electronic publishing on paper publishing as previously mentioned.

The publisher is required to observe the rights assigned to him at the risk of legal prosecution. The distribution right granted to him does not include the electronic adaptation of the work, hence he must always go back to the contract and the extent of its explicitness and observe it, in order to get to know the extent of the rights assigned. He should also verify that the rights assigned belong to the assignor. The author may grant to the electronic publisher the rights mentioned hereunder, as example:

-  Granting third parties the right of electronic printing of the work against a consideration or for free (Print on demand).
-  The right of electronic distribution of the work.
-  The right of translating the electronic work and/or the paper work and distributing this translation electronically.
-  The electronic adaptation of the work by introducing few additions such as animation.
-  The right of distributing it independently and/or merging it with anpaper electronic data base through the internet or compact disks (CD Rom).
-  The right to amend the electronic copy of the work by entering some notes and linking its texts (hyperlink), at the risk of infringing the author’s moral rights.

5 - The authors’ royalties:

The Lebanese law has adopted the theory of having “ the author participate in a percentage of the exploitation revenues and sales proceeds” as an obligation at the risk of nullity (article 17 of law no. 75/1999). The obligation of paying the author his royalties that may reach 30 % of the sale price is among the essential obligations undertaken by the publisher.

In this respect, attention should be drawn to the fact that granting the publisher the right of publishing a hard copy and an electronic one as well puts him under obligation to pay the royalhes of both copies. The same principle is applied when the author assigns to the publisher the exploitation right of the work that has been previously printed electronically. Usually, these rights are paid once per year, and the author may receive a payment in advance on his royalties.

The publisher is required to pay the royalties for every exploitation operation of the work separately (Per use, Per Sale).

In our opinion, the author must abstain from accepting a lump sum as a remuneration for all the electronic exploitation works, taking into consideration, that such clause is subject to nullity owing to the fact that it contravenes the explicit wording of the Lebanese law (a percentage of the revenues). The French courts have decided in this direction.

6 - The duration of the electronic publishing contract:

The contract stands as the law between the parties thereto, hence they may agree on a duration they deem adequate. “Should the contracts fail to provide for a determined duration, they shall be construed as being effective for ten years only as of the date of signature of the contract” (article 17 of law no. 75/1999). This provision aims at the author’s protection. The contract’s duration may extend to the lifetime of the author and fifty years thereafter as of the date when death of the author occurred (article 49 of law no. 75/1999).

We advise not to assign such rights for a long term due to the recent developments in the data processing field.

Many other conditions may, of course, be included in the electronic publishing agreement, and this study is not meant to be comprehensive. Much alike any other agreement, details are important, but the crucial factor is execution.

Last but not least, and in order to meet the interests of both parties, the electronic publishing contracts must be drawn up by a specialized attorney, and not to take or copy passages of a sample published in a book or electronic web sites.

P.S.

Rany Joseph SADER, Attorney at law<br>
GROUND YOUR RIGHTS ON RIGHT GROUNDS®

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