(Original in French)

Justine Martin^[1]

Whichever form or economic value it takes, creation feeds cultural diversity as it is manifested in time and space, thus creating a dialogue between peoples.

By protecting and promoting the diversity of cultural expressions, the 2005 Convention intends to defend and foster creation in all its forms, regardless of its production, diffusion or distribution mode. Irina Bokova, General Director of UNESCO, thus reiterated that one of the objectives pursued by the Convention is to “create an enabling environment, in which artists, cultural professionals, practitioners and citizens worldwide can create, produce, distribute, disseminate and enjoy a broad range of cultural goods, services and activities” (Bokova 2013).

 

Cultural Diversity is at the Core of the Challenges Faced by Creation in the Digital Age.

With the development of the Internet and new technologies, cultural diversity is at the core of the challenges faced by creation. Mentioned in different European texts, it becomes a common thread for States and their actions. Article 167, paragraph 4, of the Treaty on the Functioning of the European Union can be quoted in this respect: “The Union shall take cultural aspects into account in its action under other provisions of the Treaties, in particular in order to respect and to promote the diversity of its cultures.” The Court of Justice of the European Union also refers to it in the UTECA (CJUE 2009) case, pronounced on March 5, 2009, about a member State that had forced radio broadcasters to finance certain films, in an effort to support cultural production pertaining to a specific language.

 

Propelled in a Dematerialised Universe, Creation Must Adapt and Familiarise Itself with the Codes that Govern this New Environment.

Propelled in a dematerialised universe where “state of the art gadgets” are revered, creation must adapt and familiarise itself with the codes that govern this new environment. From an economic standpoint, the Internet sees the advent of new players, distributors of cultural products. Amazon, online sales giant, notably comes to mind, as does YouTube, a website dedicated to the online sharing of videos. New economic models are therefore appearing on the market, revolutionising the access to cultural products and, to a greater extent, creation. From a judicial point of view, the Internet offers a potential access to culture beyond compare, which, for that matter, does raise legal questions as far as the reproduction and representation of creation are concerned. Finally, the Internet changes our connection to culture, bringing about a democratisation of the access to creation. Community and sharing are the keys to this dematerialised universe.

 

New Cultural Goods and Products in the Digital Age – the Example of the Digital Book.

It is in this paradigm that new cultural goods and products have appeared and, amongst them, the digital book. The latter elicits many questions of an economic, legal and cultural nature.

Created as an intellectual work, the result of the book’s entrance in the digital age, and distributed as a cultural product, the digital book fully falls within the dynamics brought about by cultural products in the digital age and, to a wider extent, contributes to the enrichment of cultural diversity. Its distribution as a cultural product is permitted by the protection it is granted by its qualification as an intellectual work. Without protection, the digital book cannot be distributed without risks for its creators and, consequently, for cultural diversity. This is why, before studying the digital book as a cultural product (II), it is fitting to review the protection framework it benefits from, which leads us to examine the digital book as an intellectual work (I).

I – The Digital Book, an Intellectual Work

In its preamble, the 2005 Convention acknowledges the importance of intellectual property rights for the creator and its creation. In order to preserve the diversity of cultural expressions, it is therefore essential to protect these rights. This entails an enquiry into the protection framework of the digital book.

This first part shall be centred, on the one hand, on studying the legal qualification of the digital book (A) and, on the other hand, on studying the regime applicable to it (B).

A – Legal Qualification of the Digital Book

When looking at the digital book, the first question one should ask is the following: What are we talking about? The digitised book? The printed book distributed electronically? The equipment making it possible to be read? The book conceived exclusively in a digital format? The enriched book (or hyperbook)? Faced with such an avalanche of questions, the larger question of whether the digital book could actually be qualified as a book arose (1). Without really meaning to, this last question led to legal action that resulted in the statutory recognition of the digital book (2).

1. The Digital Book, a Book?

The intellectual property code does not define the book as such; article L.112-2 only states, in the list of intellectual works, literary writings. In order to obtain a definition of the book, one must refer to a tax bulletin of December 30, 1971, modified in 2005 and 2009. It defines the book as “a printed, possibly illustrated composition, published under a title and aiming at the reproduction of an intellectual work by one or several authors with a view to teach, disseminate thoughts and culture. This composition may take the form of printed elements, assembled or united by any method, as long as these elements have the same object and their gathering is necessary to the unity of the work. They may only be sold separately if they are meant to constitute a whole or are an update of that whole (…)”. Upon reading this definition, one is forced to assess that the digital book cannot be qualified as a book. This assessment, somewhat unfortunate in the case of the digitised book, soon elicited some reactions.

Several proposals of a definition of the book that would integrate its digital edition were indeed created. One of these was the proposal made by the National Publishing Union (Syndicat national de l’édition, SNE) which, based on the definition stated in the tax bulletin, removes any mention of the paper edition, focusing instead on the cultural content of the book, independently of its support (Borg 2010: 8). Another proposal was that made by the European parliament, during the debates on establishing a set price system for books, which grants the book statute to digital editions, as long as these replace printed books (Parlement européen 2002).

In the end, the definition of the book was never modified; however, and that is where the innovation happened, a legal definition of the digital book was established.

2. Legal Recognition of the Digital Book

Although lawmakers were not unaware of the existence of the digital book, it was not until law No. 2011-590 of May 26, 2011 on the price of digital books that these earned their legal existence in the French legal environment.

As such, article 1 of aforementioned law states that: “The present law applies to the digital book when it is an intellectual work created by one or several authors and it is commercialised both in its digital format and published in printed form or it is, because of its content and composition, likely to be printed, with the exception of the additional elements specific to the digital edition”. This definition prompts several comments.

First of all, it is perfectly established that the digital book is an intellectual work, eligible for the protection granted by copyright. More exactly, it takes its due space within the big family of intellectual works, covered in aforementioned article L.112-2. Although the article makes no express mention of the digital book, which is perfectly logical considering when it was written (in 1957), it remains that the latter now comes under the category of literary writings.

Then, upon reading the definition, one understands that it is the commercialised book that is concerned in its printed and digital formats, as long as the digital book is printed or at least printable. This means first that lawmakers seem attached to a certain degree of materialism. Indeed, the digital book is admitted as long as it may be converted into a paper book in a click. Secondly, one notices that the law is concerned with the homothetic digital book, defined in Zelnik’s report as “reproducing identically the information contained in a printed book, while admitting certain enrichments, such as an internal search engine” (Zelnik 2010: 7). However, is such a statement not reductive of what the digital book really is? Admittedly, the digital book may be many things and this is precisely why establishing its qualification is a complex matter. Nevertheless, does linking it so firmly to the printed format not lead to evading tomorrow’s problems? In a society characterised by a culture of sharing, is the book exclusively conceived for the digital format not the future?

Finally, the definition mentions “additional elements specific to the digital edition”. This means that the digital edition presents specific characteristics which therefore differentiate it from the paper edition. Why then decide to link the two?

In Europe, the digital book’s legal classification is far from unanimous. Whereas some member States consider that a book is a book, whatever its support, the European Commission judges that the digital book is an electronically provided service. These two positions, which were expressed during a conflict between France and Luxembourg and the European Commission on the issue of VAT rate applicable to the digital book, resulted in the sentencing of these two States for infringing on European VAT regulations by applying a reduced VAT rate to the digital book (CJUE 2015a; CJUE 2015b).

Françoise Benhamou, the eminent culture economy specialist, drew an analysis that is a good assessment of the situation: legally, the digital book is “not quite the same, not quite different…” (Benhamou 2009: 73 et s.).

The issue of the digital book classification, which is clearly a complex one, is also essential in determining the legal regime applicable to it.

B – An appropriate Legal Regime – the Publishing Contract Example

In order to determine the legal regime applicable to the digital book, the question was posed of whether the latter was the same as the printed book, in which case the same legal regime would be applied to it. Considering the legal classification established by lawmakers, it appeared that the legal regime applicable to the paper book could not, as such, be applied to the digital book. It was therefore decided to adapt that regime. One of the more significant illustrations of this is the publishing contract.

After presenting the reasons leading to the adoption of a new publishing contract (1), certain points of that contract shall be set out (2).

1. The Reform of the Publishing Contract – Explanations

Defined in article L. 132-1 of the intellectual property code, a publishing contract is a contract through which an author transfers to a publisher the exploitation rights on his or her work, i.e. the right to reproduce and represent the work. In the context of such a contract, the publisher assumes both the financial and legal risks attached to exploiting the work. Originally conceived for the paper book, the publishing contract soon encountered difficulties when the book entered the digital age, thus requiring an adaptation of the legal rules applicable to the paper edition.

Although initially nothing was expressly planned for the digital edition in the publishing contract, it was not completely absent from it. Most of the time, the digital book edition was the object of an additional clause in the initial publishing contract, or so-called digital clauses, spread out in various paragraphs throughout the contract. Such a partial integration leading to legal insecurity on the part of the authors as well of the publishers, the latter decided to join forces in an effort to adapt the publishing contract to the digital age.

After four years of negotiations, authors and publishers reached an agreement: the March 21, 2013 agreement, adopted by the French Writers Council (Conseil Permanent des Écrivains, CPE) and the SNE, whose latest provisions have been effective since December 1st, 2014^[2].

2. The Publishing Contract in the Digital Age

Globally, the new publishing contract intends to be more protective of the authors’ interests. On one hand, certain practices related to the exercise of the publisher’s profession are now the object of a provision. The obligation to exploit the work in a permanent and continuous manner, or to present the accounts, may be mentioned in this respect. Moreover, the contract introduces new clauses aiming to re-establish a fair balance between authors and publishers. The so called end-of-exploitation clause to the benefit of the authors notably comes to mind. Some elements of the contract still warrant some discussion; we shall now look at a few of these in succession.

a) Unicity of the Publishing Contract

With unicity in mind, the new publishing contract is common to the paper and digital edition. It includes two distinct parts, one concerning the cession of printed rights, the other that of digital rights.

Although the CPE and SNE had wished to gather the different book fabrication modes in one contract only, their efforts are vain in the case of termination by one of the parties, as such a termination would not entail the termination of the whole contract. For example, terminating the part of the contract relating to the digital rights shall not lead to the termination of the part concerning printed rights; the publisher may therefore still exploit the work in its paper format. This might be an issue if we consider, as it seems to be the case in France, publishing a digital book as an extension of its paper edition.

b) The Digital Pass for Press

The new publishing contract provides that the paper proofs’ pass for press is also valid for the homothetic digital book; in contrast, a digital pass for distribution is required for the illustrated book, the enriched digital book and in case of considerable modifications or enrichments made by the publisher. This provision warrants a few comments.

On one hand, it is understandable that youth and school editions should need a digital pass for press, since they contain illustrations.

On the other hand, it would seem that such a provision makes a distinction between the homothetic digital book and the enriched digital book. Considering the legal definition of the digital book, this distinction is not in the least surprising; it does however invite a question about the enriched book status in the new publishing contract. Can it be the object of a publishing contract? If indeed it can, which part of the contract should it come under? Evidently, it does not seem to belong to the part relating to the cession of printed rights anymore than to that relating to the cession of digital rights. Some specialists, based on the premise that the enriched digital book is closer to an audio-visual adaptation, suggest that adding a third part to the publishing contract should possibly be considered (Bruguière 2015: 61 – 63). The legal uncertainty surrounding the enriched digital book might explain why, in 2015, digital books enrichment remains marginal (KPMG 2015: 11).

c) “Digital” Obligation to Exploit the Work in a Permanent and Continuous Manner

One of the four criteria constituting the digital obligation to exploit the work in a permanent and continuous manner is the obligation, for the publisher, to make the work accessible for sale, in a non-proprietary digital format. Originally, this provision aimed to counter Amazon’s proprietary format, Kindle. However, it does much more than that; it rekindles the discussion about using protective technical measures or Digital Rights Management (DRM) as they are known, a discussion which, to this day, struggles to come up with concrete answers. Is commercialising a digital book without DRM even conceivable, knowing that in 2015, 69% of publishers have adopted anti-piracy solutions, with DRM at the forefront with 39% ? (KPMG 2015: 26)

Though adapting the publishing contract to the digital age constitutes a fundamental breakthrough, it remains that its applicable legal regime still needs to be adapted, too. Some points have still not been answered, or at least not satisfactorily so; such is the case of the digital books resale or that of the digital loan rights in libraries.

If the digital book was conceived as an intellectual work, it is also distributed as a cultural product.

II – The Digital Book, a Cultural Product

The digital book stands amongst the cultural products brought about by the digital wave. As noted in the preamble to the 2005 Convention, it possesses in this regard a double nature: economic and cultural. Therefore, in spite of being distributed as a cultural product, the digital book cannot be considered as a merchandise like any other. This is, incidentally, confirmed by the rules attached to its pricing. Just as the paper book, it benefits from a single price system, set by the publisher; said system, which breaks away from common law, was notably justified by the necessity to preserve publishing diversity, an aspect of cultural diversity (Autorité de la concurrence 2009: pt 60).

Anchored in the dynamic of the Internet and new technologies, the digital book brought about a whole new ecosystem centred around books and reading (A); it offers new reading opportunities to the citizens of the world, turning the digital book into a factor of sustainable development and social cohesion, values which are defended and consecrated by the 2005 Convention (B).

A – The Digital Book, a New Ecosystem Centred around Books and Reading

The 90s, which were marked by the establishment of the first online bookstores and publishing companies, the advent of reading tablets and the opening of the first digital portals by libraries, bear witness to the entrance of the book in the digital age (Lebert 2011).

From an economic standpoint, the digital book led the actors of books and reading to redefine their role in the book chain, while it also brought about new economic models, carried by new cultural products distributors.

1. The Actors of Books and Reading to the Digital Test

Considered in France as the electronic extension of the paper book, the digital book cannot be said to have really revolutionised the framework set by the paper book. Whether the book exists in paper or digital format, the actors involved in the book chain are the same; they are the publishers, the booksellers and the librarians. The actual revolution has more to do with the necessary adaptation of these actors’ role in order to respond to the challenges brought to the market by the digital book. Let us take the example of publishing companies.

The arrival of the digital book on the market led publishers to develop a digital offer. In France, most of the publishers got started in 2011 and 2012; that period was also marked by the take-off of the tablet market. After these peaks, the digital book offer continued to grow, but less intensely so (KPMG 2015: 7). In 2015, 62% of publishers boast a digital book offer; however, it is notable that the big publishing houses are the only ones that have embarked on the digital adventure. Indeed, whereas all the big publishing houses, with a turnover over 20 million euros, boast such an offer, less than half of the smaller houses followed suit (KPMG 2015: 6). For half of the publishers concerned, this is justified by the fact that the digital offer would be unsuitable for their sector and it would be difficult for a small structure to develop (KPMG 2015: 9).

From a practical standpoint, the development of a digital offer requires setting up a digital format catalogue, as well as making the works available on online sale platforms and/or bookstore websites. As far as setting up a catalogue in digital format, in 2015, 1/3 of digital publishers offer more than half their available catalogue in digital format. The selection of digital books available through their catalogue is essentially made up of recent (published for 1 to 5 years) and new works (published less than one year ago). Nevertheless, some publishers have explained that they are hindered in the digitization of their collection because they do not hold the rights (KPMG 2015: 10). Setting up a new publishing contract, legally organising the cession of digital rights, will undoubtedly bring a solution to this problem and indeed contribute to the enrichment of the publishing houses’ digital catalogue. As far as points of sale are concerned, the three main buyers of digital books are Amazon, Apple and Kobo (KPMG 2015: 20). However, independent bookstores are not altogether absent from this market. Some have embarked full steam ahead in the digital. This is the case for several Parisian bookstores that joined forces in order to create an Internet site, http://www.parislibrairies.fr, enabling readers to search for the book of their choice, be it in printed or digital format, in the list of participating bookstores. Once the reader has found the desired book, they can pick it up in the nearest bookstore. Such a method gives readers a wide access to digital books, while benefitting from quality service which includes a selection process of the works. In 2015, for over 30% of publishers, digital books sales amount to over 5% of the turnover (KPMG 2015: 30).

The digital book market in France is evolving little by little, notably because of a rise in the number of readers. While they were 15% in 2014, in 2015 they represent 18% of the French population aged 15 and above (OpinionWay 2015).

2. New economic models

In addition to the necessary adaptation of the book chain actors’ role, the digital book brought about the advent of new economic models, carried by new cultural products distributors.

The digital book embraces the Internet’s logic, in which algorithms and cutting-edge technologies get along well. The originality of these new formulas has to do with the fact that they are now based on a recommendation logic. Thanks to cookies and algorithms, companies can now establish everyone’s tastes and habits, so as to better target expectations as far as purchases are concerned. In this regard, Divina Frau-Meigs, UNESCO Chair “Savoir-devenir” (“Know-How to Evolve”), refers to the so-called “filter bubble”. She explains that this bubble, made possible by algorithms, can have harmful consequences on creation. By confining individuals in a bubble made up exclusively of what they like, algorithms do not arouse curiosity and therefore do not encourage creativity; in this sense, they would constitute a threat to the diversity of cultural expressions (Frau-Meigs 2015).

This recommendation logic is increasingly present on the digital book market. Let us take the example of Kobo and its application, Kobo Reading Life. Beyond offering a connected reading, this application includes a service called Kobo perso, which analyses readers’ tastes and comments on the books they have read, so as to suggest a personalised offer that users are likely to enjoy.

These new models also highlight complimentary services. Many companies offer their services in a complimentary manner, until they are able to make them profitable, notably by using advertising banners. This is for example the case of the Booxup application, dedicated to loaning books amongst private individuals. Recently launched by a French start-up, created by David Mennesson and Robin Sappe, the application is free and available on the Appstore.

The complimentary aspect has certain advantages; amongst other things, it enables the public at large to discover authors who do not necessarily stand a chance to be published by a publishing house. That is precisely what Michal Kicinski understood and why he recently launched his OpenBooks platform in Poland, allowing Internet users to download self-published digital books for free and pay the author after reading their work.

Finally, the digital book facilitated the establishment of wide public membership services. Although these had been around since the 2000s, they only had a very limited impact at the time (Engel & Phalippou 2015: 4). In France, Amazon’s launch of its membership program, Kindle Unlimited, modernised these offers. Incidentally, this led the Médiateur du livre^[3] to question whether these offers were compliant with the Law of May 26, 2011 relating to the price of the digital book (Engel & Phalippou 2015).

Even though the new economic models brought about by the digital book contribute to the creation of value, they are not without danger as far as intellectual property rights are concerned. In this respect, they are often precarious for creators, notably in terms of remuneration. Beyond the legal protection needed by authors in order to create and thereby contribute to the enrichment of cultural diversity, a fair and equitable^[4] remuneration must be paid to them. Unfortunately, these models, as those mentioned before, do not focus much on this imperative. Nevertheless, they do offer new perspectives in terms of sustainable development and social cohesion.

B – The Digital Book, a Factor of Sustainable Development and Social Cohesion

Anybody who has an Internet connection can now freely access thousands of works; this is how much the Internet has revolutionised access to culture.

Born in the midst of this dematerialised environment, the digital book offers new reading perspectives. In this respect, it can be considered, on the one hand, as a factor of sustainable development (1) and, on the other hand, as a factor of peace and social cohesion (2).

1. A Factor of Sustainable Development

As part of its preamble, the 2005 Convention states that the diversity of cultural expressions is “a mainspring for sustainable development for communities, peoples and nations”. Creation therefore appears as an essential condition of sustainable development. Beyond the purely economic dimension to which the digital book contributes, notably through the establishment of new economic models, it is clear that sustainable development depends on the cultural development of citizens.

When observed in its cultural dimension, the digital book contributes to the cultural development of individuals, notably because it gives access to the world’s cultural heritage and grants access to reading to everybody.

a) Access to the World’s Cultural Heritage

The existence of the homothetic digital book was made possible by the development of technologies and, more particularly, by the development of a coding technique called digitisation. The latter is used by libraries as a heritage saving tool. The French National Library has for instance created a digital library, Gallica, which contains digitised books, manuscripts, magazines, photos and an illumination collection. More recently, abroad, the New African Digital Edition (Nouvelles Éditions Numériques Africaines) announced they were launching a new offer, based both on digital libraries and audiobooks; its purpose being the dissemination of African cultural heritage throughout the world. By creating a homothetic digital book, digitisation gives a new life to works which are wasting away with time. It thereby enables readers to discover older works, thus diversifying the available reading offer.

Nevertheless, although it presents certain advantages, digitisation sometimes leads to serious violations of intellectual property rights. Around this issue, one case particularly made an impression; it is the Google Books case, where Google integrally digitised several works, including works still under copyright, with the purpose of creating a universal digital library. In France, this case ended with Google being convicted for counterfeit (TGI Paris 2009); however, one positive outcome was the sparking of a new project. Indeed, after this case, lawmakers adopted Law No. 2012-287 of March 1st 2012 relating to the digital exploitation of unavailable 20th century books^[5]. By allowing the digitisation of these unavailable books, the law entitles them to a new distribution, in digital format.

b) Access to Reading for Everybody

The digital book also appears as an innovative solution, in terms of publishing offer and reading ease, for the visually impaired and people suffering from dyslexia or a physical handicap preventing them from reading.

Although there are audiobooks, books in braille and printed in large characters, the publishing offer remains rather restricted, due to high costs and production time. With the development of digital technologies, an adapted reading format appeared, the DAISY format (Digital Accessible Information System), which offers better readability and facilitates browsing within the books, thanks to its structure. This format is increasingly used by publishers. Every year, the SNE launches the new literary season in DAISY format, in order to make the most popular books available to as many people as possible.

E-readers and tablets also contribute to a better reading experience through the use of new functionalities, such as the ability to zoom on images or characters.

2. Factor of Social Cohesion

First of all, the digital book, specifically the enriched digital book, transforms the way we read; the book is no longer an object we flip through, but an object that enables us to travel to the heart of history. It unquestionably brings added value to a paper edition. Let us take the example of the Harry Potter saga; in its enriched digital version, it includes not only the full original text, but also author’s comments, illustrations, animations and interactive scenes, taking readers to the heart of Hogwarts.

Secondly, the digital book, whether enriched or not, brings about a new way to read – collaborative reading. Digital books readers are able to interact simultaneously on the book, thus weaving social links; no need to look for a reading club near your home anymore! For some, collaborative (or social) reading is the future; this is the case for Bob Stein, Director of the Institute for the Future of the Book think tank, which is devoted to study the evolution of the written word. In his opinion, the digital evolution has more to do with the new reading perspectives it offers then with electronic media per se (Stein 2014). Incidentally, the Institute launched its own collaborative reading platform, SocialBook, offering advanced annotation and comment functionalities. In France, similar platforms can also be found, such as Babelio, launched in 2007 by three reading lovers^[6].

Finally, the integration of books and YouTube created the booktubers. This phenomenon, which appeared in the Anglo-Saxon world, now counts thousands of members all over the world. The concept is simple: booktubers read books, talk about it (usually in a humorous manner) and share them on the web via YouTube. In France, their numbers keep growing; amongst the most famous is Émilie Coissard, also known as “Bulledop”. Drawing on this success, some French book start-ups such as Librinova and Book Weather devised a project aiming at bringing the booktubers closer to traditional publishing by launching BookTube.fr (Oury 2015), a platform which should improve the indexation of their videos.

The digital book brings culture at the heart of citizens’ daily life, whether by setting up collaborative reading platforms or by making available books which are an integral part of the world’s cultural heritage. In this respect, it fully fits the objectives established by the 2005 Convention, notably in terms of sustainable development, be it at the economic and cultural level or that of social cohesion.

Conclusion

Just as other types of creations, be they music or movie related, the digital book contributes to enriching the diversity of cultural expressions. Its legal protection can therefore not be overlooked.

Although considered in France as the electronic extension of the printed book, the digital book is innovative. By bringing the literary world in the dynamic of the Internet and new technologies, it turned the book into a timeless object. Often poorly regarded by creators, due to the fact that the economic formulas it entails may go against intellectual property rights, it does offer new evolution perspectives to the book and the reading experience. For the last few years, a whole social network built itself around it, thus creating interactions between individuals.

Although the present paper is but a brief overview of the digital book and the challenges that surround it, it does start a reflection on the issue. What is the future of the digital book in France? By tying it so firmly to the paper edition, is France missing the opportunities it offers?

References

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