The French Senate proposes to legalize piracy of the French 20th century printed heritage
ADULLACT, AFUL and FFII France, three associations promoting open access to digital resources without infringing copyright, express their grave concern about a new law proposed before the French Senate concerning digital exploitation of 20th century out of commerce books. A major intent is to block the European policy aiming at opening access to culture and knowledge, and to subsidize publishers with public money from the state and from local governments.
Ignoring the exclusive rights of authors, and particularly their moral right to release of their works, the French parliament seems prepared to seize control of the French 20th century written heritage, and grant its exploitation to commercial publishers, at the expense of the public, the libraries that preserved them, and most of their authors. The primary goal of this law is to defeat the objectives of a proposal for a European directive which takes account of both the public interest and the rights of authors.
The proposed law
A proposal for a law on the digital exploitation of out-of-commerce books from the 20th century  was introduced in the French Senate by Senator Jacques Legendre. The purpose of this law is to implement in France what Google and some authors and publishers associations tried to implement in the United States, through a class action settlement proposal which was rejected by a United States District Court. It seeks to create a mandatory collective management society (MCMS) which would hold a monopoly on the right to authorize or prohibit exploitation of all French books published in the 20th century that are out of commerce, often for lack of exploitation by the publishers holding the printing rights.
The proposal concerns about 500,000 works which are no longer for sale, not being profitable enough in print, and are available only through the libraries that preserved them. The MCMS would take over the management of the "exclusive rights" (sic) of authors, without any search to locate the rightsholders and ask for their preferences, digitizing the books and granting their digital exploitation to publishers. Authors could opt out only under very constrained conditions. The details of this project have been in secret preparation for some time , notably by the Ministry of Culture, the National Publishers Union (Syndicat National de l’Édition - SNE) and the Société des Gens De Lettre (SGDL), which is an association of authors. While they had no word strong enough to castigate the Google settlement proposal, which "was not in compliance with the legal rules of literary and artistic property", it becomes suddenly very compliant when the same organizations do like Google without Google, and infringe even further the exclusive rights of authors.
In its 2008 report on orphan works , the Higher Council on Literary and Artistic property (Conseil Supérieur de la Propriété Littéraire et Artistique - CSPLA) insisted adamantly on the requirement to conduct a search, "resolute and above challenge" (« recherches sérieuses et avérées ») for rightsholders before attempting any unauthorized exploitation of their works. The same organizations who insisted on that rule are now proposing to ignore it.
The target: a European directive proposal
The primary target of this law proposal is clearly the European Commission’s proposed “directive on certain permitted uses of orphan works”. Works are considered orphaned when the authors or rightsholders cannot be located even after a diligent search in appropriate professional sources. Orphans constitute a large portion of out-of-commerce works. Rather than let these works fall into oblivion, the directive would allow their free digital exploitation by the institutions that preserved them, within the limits of their public interest mission, including cultural and educational access to the works. This does not exclude compensation for rightsholders who re-appear, and thus does not harm anyone’s interests. The directive proposal includes the possibility of commercial exploitation, for a fee that reduces the risk of an alleged competition with other works.
This directive proposal is well balanced and adapted to the digital world. What author, knowing that no rightsholder will benefit from it, would want to hinder the dissemination of his work by requiring payment? However a fee does not hinder significantly commercial dissemination, since access is to be paid for anyway in this case.
Above anything else, an author wants a public. Creating unrequested obstacles, financial or otherwise, to the availability of an author’s work is the most violent assault that can be brought against his moral rights. This is precisely what the Senate proposition is intending for the benefit of publishers since no other rightsholder is able to collect payment. It might also benefit active authors, members of authors’ societies, who believe - and they are candid about it  - to be thus rid of alleged competitors through a legal device rather than the originality of their own writings. This further underscores, if need be, the injury to moral rights.
Particularly in the academic world where they often belong, authors increasingly choose to make their works available in open access on the Internet to promote the dissemination of their views, since the digital exploitation of works is possible with no marginal cost. This legitimates even more the assumption that many authors of orphan works would similarly choose open access to pull their works out of oblivion.
This law proposed by the Senate would be highly detrimental to many authors, most of whom are no longer able to speak for themselves. It was negotiated by organizations representing precisely those publishers or authors who have nothing to fear from it, who expect to gain some advantage, and who explicitly consider orphan works as competition for their own.
For a few dollars more
The dissemination of works in printed form always required costly investment. It was thus unavoidable that exploitation become commercial, and it became a rule to give the author a share in the profit made from the work. In the digital world, where dissemination comes without cost, the assumption that some payment is inevitable is no longer sustainable. In increasing numbers, authors seek to enlarge their audience by making their works freely accessible, as shown in the 2007 CSPLA report on open access to works of the mind .
It is then clearly abusive to allege that authors of out-of-commerce works, presumably works with little commercial success, would prefer that digital dissemination of their work be commercial rather than open. Furthermore, to require commercial exploitation and payment for the works goes against the stated purpose of the law, to revive the literature of the 20th century, and it infringes needlessly on the exclusive right of authors to prohibit the use and exploitation of their works. The proposed Google settlement agreement did not go that far, and its terms would have been compatible with the European directive proposal.
One may wonder whether an author who decides to distribute his own out-of-commerce book formerly published in the 20th century runs the risk of being sued for infringement, incurring a penalty of 3 years in jail and a 300,000 euros fine.
A memorandum of understanding , the details of which remained secret, stipulates that the digitization of these works will be financed from the government loan for investing in the future (« grand emprunt pour les investissements d’avenir »), that is by public money. Given the limited commercial interest in these works, they will be bought mostly by libraries and other similar institutions. To sum up, the public money of the state and of local governments will be used to reimburse public money originally put forward by the state, so that private organizations can take control of an heritage which is in no way a collective property of authors and publishers.
The proposed law has specious motivations and is very technical and hard to understand for the layman. It is hiding under legal rags to trample public interest as well as the founding principles of "droit d'auteur", particularly the moral rights in which France usually takes considerable pride.
The problems that the proposed law claims to solve can be addressed much more effectively by other means that are more equitable, more transparent and more mindful of the public interest. The action of the European Union goes in that direction with its directive proposal, the digital library Europeana and the ARROW registry database.
Reference  is the ony one in
 Proposition de loi relative à l’exploitation numérique des livres indisponibles du XXe siècle, Sénat, 21 octobre 2011. http://www.senat.fr/leg/ppl11-054.html
 Une deuxième vie pour des titres indisponibles, Ministère de la Culture et de la Communication, 2 février 2011. http://www.culture.gouv.fr/mcc/Actualites/A-la-une/Une-deuxieme-vie-pour-des-titres-indisponibles
 Rapport de la Commission du CSPLA sur les œuvres orphelines, CSPLA,19 mars 2008. http://www.cspla.culture.gouv.fr/CONTENU/rapoeuvor08.pdf
 Proposal for a Directive on certain permitted uses of orphan works, European Commission, 2011/0136 (COD), May 24th 2011. http://ec.europa.eu/internal_market/copyright/orphan_works_en.htm#directive
 Les Œuvres Orphelines dans le Secteur de l’Écrit, Groupe de travail CFC, note d’étape, 2 octobre 2007. http://www.datcha.net/orphan/documents/france/CFC-NOTE-D-ETAPE-2007.10.02.pdf
 Rapport de la Commission du CSPLA sur la mise à disposition ouverte des œuvres de l’esprit, CSPLA, juin 2007. http://www.cspla.culture.gouv.fr/CONTENU/miseadiposouverterapp.pdf
 Dossier AFUL sur les œuvres orphelines au CSPLA, 2007-2008. http://aful.org/droit-auteur/index/oeuvres-orphelines/
 Le Sénat organise le viol des droits d’auteur, Communiqué ADULLACT, AFUL, FFII-France, 26 octobre 2010. http://aful.org/communiques/senat-organise-viol-droits-auteur
Note: The first meaning of the word "pyrate" in this context dates from the early 17th century, and referred to illegitimate exploitation of works by professional printers.
About Adullact (http://adullact.org/)
Created late 2002, the Association of developers and Users of Free Software for Administrations and Local Governments aims at creating, developing and promoting a common pool of professional software, so that public money will pay for it only once. The Adullact has its own permanent team of professionals to encourage and assist members in collaborative development on its forge adullact.net, which includes also projects from the forge Admisource. A unique structure, Adullact was accredited for the Tunis World Summit.
About AFUL (http://aful.org/)
The French Speaking Association of Free Software Users aims mainly at promoting free software and open access, as well as the use of open standards. Its members, users, free software professionals, companies as well as other associations, come from about 10 different countries or French speaking areas (France, Belgium, Switzerland, French speaking Africa, Quebec),
AFUL is present in the media, in shows, conferences and meetings. Its actions are mainly lobbying against hardware-software bundling ( Stop Racketware), comparing professional sources of computers (manufacturers and retailers) with respect to its objectives, promoting interoperability (as member of AFNOR, by contributing to national reference documents on interoperability, with the site formats-ouverts.org, ...), by following the evolution of copyright in various contexts, and by promoting free pedagogical software and resources for all levels of education.
About FFII France (http://ffii.fr/)
The FFII is a not-for-profit association, dedicated to the development of information goods for the public benefit, based on copyright, free competition, and open standards. More than 1,000 members, 3,500 companies and 100,000 supporters have entrusted FFII to act as their voice in public policy questions concerning exclusion rights in data processing.
FFII France is the French chapter of FFII, and represent FFII in France.
Contacts for the Media:
Press Relations - AFUL : firstname.lastname@example.org
Related subjects: Creator's rights, Copyright