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Contracts for Original Works Published on Internet

Attorney Nicolas Valluet explores the whys and wherefores of having your work put on the Internet.

This is the first of a series of occasional articles from attorneys from various countries around the world on problems of international law as they apply to animation. Our opening article in this series deals, appropriately enough, with the Internet and is written from a French perspective.

The putting online of an original work demands that the owner of rights to the "work" (author or assignee) specifically authorizes the online-service (publisher) to exploit it on the Internet. The existence of prior contracts forseeing the ceding of rights for certain venues without alluding to online use, is no longer sufficient grounds for the publisher to assume that he has rights to broadcast the work on the Net. The law now demands a signature on a specific Internet contract--which also has the merit of clarifying the rights of both parties.

In the eyes of the French law, this contract should include ceding the right to play the work on the Net, and usually ceding the rights to reproduction. The right to play consists of communicating the work to the public by either a direct or indirect process, such as television or the Internet. The rights to reproduction, on the other hand, gives authorization to fix the work materially, including its reproduction by printing on paper or its reproduction by a digital process in the computer's memory.

The author may refuse to cede his rights to reproduction, and demand that the publisher forbid the visitors to his site from downloading any information figuring in the work. However, since this prohibition is difficult to monitor in practice, I believe the author should negotiate for ceding the rights to reproduction.

Further issues involve the extent of the rights ceded by the contract, which include the mode of payment, the territory covered, the length of time for which the contract will be valid, and respecting of the author's moral rights.Concerning the territory, it is illusory to limit the ceding to such and such territory considering the international nature of the Internet, and the fact that the users are hard to locate. So the attention of the parties should focus on the length of the ceding and on how the author will be remunerated.

The parties must decide between a proportional remuneration or royalty (if it were possible to calculate that) and an outright, upfront payment--or some combination of the two. Considering the difficulties in predicting and calculating remuneration proportional to the online access to a work, it is more reasonable to plan a system of outright payment to the author.

But the mode of compensation also influences the duration of the rights ceded. In effect, the combination of a long-running contract with an upfront payment seems dangerous for the author, since he loses financial control of his work for a long time. Though it is theoretically possible to cede the rights for the whole duration of the copyright, commonly in the digital domain one cedes rights for a limited time, accompanied by a clause that automatically renews the contract, unless one party informs the other to the contrary. So, while there exists a freedom of choice for both parties in respect to the duration of the ceding of rights to exploit the work, a combination of upfront payment with a limited duration of the contract is favored by French jurisprudence and tenet.

Aside from proprietary rights, we must also consider the moral rights of the author, which is quite specific in continental European law (but doesn't exist in the United States). French law poses the principle of perpetual moral rights of the author, which acts as a right beyond copyright and confers on the author rights in respect to his name, his quality and his work--and over the publication of those. These moral rights are specifically attached to the person of the author, being perpetual and inalienable, and they cannot be annulled or made void. So the moral right remains attached to the author and his heirs, who may not cede this right, but who may use it to continue the exploitation of the work after the expiration of the formal copyright. Similarly the author or his heirs may use this moral right to oppose a usage made of the work even after rights for exploitation have been contractually ceded.

In the final analysis, French law protects the interests of the author, and it is absolutely necessary that the Internet publisher obtain these rights with a contract that considers the duration of ceded rights and the mode of remuneration for them, and which is conscious of the moral rights of the author.

Nicolas Valluet is a lawyer at the Court of Paris, associated with the firm Valluet-Achache et associées, as well as president of l'Association des Avocats du Droit d'Auteur (Association of Lawyers for the Rights of Authors).