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Contracts, Remuneration and Transparency: A comprehensive Report on Contractual Clauses in Publishing Agreements in the European Book Sector under the Directive 2019/790 (EU)
On the 3rd Anniversary of the entry into force of the Directive 2019/719 (EU) on Copyright and Related Rights in the Digital Single Market on 7th of June 2024, the 45-page EWC report ‘Writers’ Contracts‘ summarises where the future tasks of the European Commission will lie in order to move from theory to enforceable practice. The report sheds light on fiction writers’ contractual issues such as duration, remuneration details, transparency, but also topics such as e-lending, PLR and rights revocation in a comparison of 19 EU, Non-EU and EEA countries.
From March to July 2023 the European Writers’ Council (EWC) monitored the contractual situation of fiction writers in 19 EU, non-EU, and EEA countries and the effect of the 2019/790 (EU) Directive on Copyright and Related Rights in the Digital Single Market (CDSM Directive) on publishing agreements in the European book sector, where applicable.
It also monitored the contractual situations in the EEA and non-EU countries Iceland, North Macedonia, Norway, Switzerland, and the UK, related to remuneration, transparency rules, revocation, and related regulations, within an online survey comprising 43 quantitative and qualitative questions including open-end individual comments and case studies.
Not all of the countries analysed fall under the regime of EU law or the CDSM Directive. Nevertheless, some non-EU and EEA countries have taken the Directive as a model for their own national drafts; others have comparable practices around contracts, which has enabled the country comparison of the evaluation for 19 countries beyond the 27 EU states.
DOWNLOAD THE EWC FICTION WRITERS CONTRACTS REPORT 2024: EWC CONTRACT REPORT FICTION 2024
23 WRITERS’ ORGANISATIONS FROM 19 COUNTRIES RESPONDED TO ASPECTS OF:
- transferred rights and limits, including buy-out-practices, where relevant;
- remuneration and royalties, including lump sum payment, where relevant;
- digital and electronic rights and usages;
- transparency and accounting.
- Public Lending Right (PLR) and e-lending, where applicable.
The responding organisations represent mainly fiction writers (95.45%), but also poets (81.82%), nonfiction writers (59.09%), children’s and young adult book writers (77.27%), and, in part, educational writers and playwrights. The countries monitored are: Belgium, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Malta, North Macedonia, Norway, Portugal, Slovenia, Spain, Sweden, Switzerland, and the UK.
Kick-off of a multi-level monitoring to observe the development of the CDSM Directive 2019/790.
Part I: Fiction
As the European book sector comprises several “sub-ecosystems” within the main genres, the EWC starts this multi-layered monitoring on writers’ contracts with the evaluation of the situation for fiction, which represent a majority of the 575,000 titles published annually in the European book market. The next genres to be monitored are nonfiction, and children’s and young adult book contracts.
RISING PRICES, FALLING SALES – BUT FICTION IS A WINNER IN THE EUROPEAN BOOK MARKET
Overall, fiction came through in 2022 much better than nonfiction, constated the GfK Consumer Panel. In addition to fiction novels, the new adult segment saw a rise in popularity, also due to the Wattpad and BookTok communities, pushing titles into the attention of readers. The fiction book market is expected to grow further globally to 12.01 billion US dollars in 2028. An essential role will be played by digital distribution (e-books, audio books). As the dominant market players are often non-EU providers, it is therefore important to resolve the existing gaps in transparency and proportionate remuneration in timely fashion.
DIRECTIVE 2019/790: RARELY ENFORCED DESPITE IMPLEMENTATION
The CDSM Directive of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market5, which was adopted on 17 April 2019 and entered into force on 7 June 2021, and in particular its Title IV, Chapter 3, Arts. 18-23, is aimed at improving the contractual position of authors, as they are often unable to assert their legitimate interests as sources of the entire cultural and creative sector (Recital 72).
Previously, the regulation (or, indeed, non-regulation) of contracts was the legal territory of the EU Member States, which led to significant differences in levels of protection and enforcement as well as transparency requirements, rights revocation options, and the principle of appropriate and proportionate remuneration, which was lacking in two thirds of national legislations.
The requirements set out in Chapter 3 of the CDSM Directive provide for a minimum harmonisation that allows for national flexibility to maintain existing rules or introduce new, preferably better ones.
As already noted in the EWC Survey 2022 (Implementation of the Directive (EU) 2019/790 on Copyright in the Digital Single Market), the EU Member States have not consistently used this flexibility for decisive protection; in some cases, existing rules were even watered down, in others new rules were weakly implemented, such as rights to information or collective bargaining options including the right to sue as an association in order to prevent continued, inappropriate remuneration.
Likewise, several EU Member States implemented the CDSM Directive very late, or only partially, to the ongoing disadvantage of the creative and cultural authors and professionals.
Overview of the table of content of the EWC 2024 Report on Writers’ Contracts
Contracts under the CDSM Directive Title IV, Chapter 3:
Analysing the impact and common practices by Articles 18-23 and the status Quo of Standard Contracts.
Part I: On legal territories, book prices, agents and habits:
Countries under Authors’ rights or copyright regime; Fixed and non fixed book price regimes; Representation by Literary Agents; Remaining traditional habits.
Part II: All rights! – Or only selected ones?:
Duration of contracts and grants of rights; Reversion of rights.
Part III: Advance payments & royalties:
Advance payment; Buy-out practices; Retail price or net revenue; Proportionate remuneration and royalties: Hardcover; Splits within sublicensing; Proportionate remuneration and royalties: Paperback / Pocketbook; Proportionate remuneration and royalties: e-books and audio book; Platforms and confidentiality clauses. Public Lending Right; E-Lending.
Part IV: Transparency & Accountings: Accountings: periods; Information and data gaps.
EWC’s Ten Recommendations
Resources
To the Report (45 p., 9 MB, pdf): EWC FICTION WRITERS CONTRACTS REPORT 2024 (DOWNLOAD: EWC CONTRACT REPORT FICTION 2024
To the EWC Position Paper: Transparency is the needed commitment to fairness (2 p., pdf)
To the Press Release: No reason to light a candle?
More about Contracts in Publishing: The WIPO Toolkit
Image Gallery
Click on an image to enlarge or download. If you want to use the diagrams, please mention the source and credit: © EWC FICTION WRITERS’ CONTRACTS REPORT 2024
