Focus on: Book publishers

VARET PRES Société d’Avocats

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In France, for book publishers as for the rest of society, 2020 was marked by the Covid-19 health crisis. Bookstores, considered non-essential businesses, were closed during the first lockdown in spring 2020 as well as during the second lockdown in November, for a total of almost three months. Thus, there were fears of a strong negative impact on the sector’s economy. Nevertheless, readers flocked to bookstores in June 2020 after the first lockdown, as well as in December after the second one, with the result that, in the end, the decrease in book sales over the year 2020 would only be of minus 2% (GFK estimate for the Syndicat National de l’Edition – “SNE”) to 4.5% (Livres Hebdo figures), with an intermediate estimate of 3.3% (Syndicat de la Librairie française), on a market whose total volume in 2019 was of 2806 million euros. This relatively small decline given the context (by comparison, the book market in Russia has suffered a decline of 20% in 2020) hides strong disparities between the various editorial sectors: while sales of extracurricular books and comics have increased (respectively by more than 4% and more than 6%), those of literature are almost stable (- 0.4%) while those of travel guides, quite logically, have collapsed (between – 40% and – 50%).

These figures do not take into account the sales of digital books, which are estimated to have increased by 30% during the first lockdown, and by 25% during the second one. So that, ultimately, according to the SNE, the overall revenue of the sector could remain stable compared to 2019.

Alongside this rise of digital books, the year was marked by the growth of audio books sales as well (+11% during the first lockdown compared to the figures of January 2020). Following the saying that crises are also opportunities, 2020 could therefore be for the French publishing industry the year of a welcome diversification in the modes of reading, in which the development of digital and audio books would no longer appear as a threat to printed ones, but as their positive complement, suited to new usages. Especially since available studies show that the biggest readers of digital books are also the biggest consumers of printed ones.

In other words, the French publishing industry, which until now has been very cautious towards digital books (whose market share remains much smaller than in the United States, for example), is likely to reinforce its confidence in the commercialization of dematerialised books and to find there a welcome boost to its growth. Thus, publishers who bet on “transmedia” earlier have even experienced growth in 2020, like the publisher of children’s books Auzou (+5%).

Witnessing this evolution in times of pandemic also shows that the law of 26 May 2011 on the price of digital books, despite its complexity, is not an obstacle to the development of this mode of reading: from now on, books “mutate” into various forms to suit the different needs and desires of readers (reading at home, in public transport, in the car, etc.) and also according to the subject matter of the books in question.

On the legislative front, the year 2020 was marked by a decree of 28 August 2020, which puts an end to nearly two years of uncertainty caused by the unilateral decision of the French administration managing social contributions on copyrights (AGESSA), to refuse the remuneration of collection directors in the form of copyright royalties. The decree contradicts that administration and validates this method of remuneration – which was widely used by publishers until AGESSA’s controversial decision – provided that the collections meet the condition of originality, to which copyright protection is subject.

In terms of jurisprudence, the year started and ended with two opposing decisions in a saga concerning the quotations of the lyrics of Jean Ferrat’s songs in books dedicated to this singer, composer and songwriter: while in a decision of 19 November 2019, the Court of appeal of Versailles ruled that in principle these quotations violated J. Ferrat’s moral rights because the lyrics were inseparable from the music, and were therefore illicit, the Court of appeal of Paris, in a decision of 12 January 2021 declared that texts and music belong to different genres and are therefore separable; consequently, songs lyrics can, fortunately, be the subject of quotations in a book dedicated to their author, without the authorisation of the latter or his successors, provided, of course, that the requirements governing the exception of quotation are met.

Looking ahead, 2021 should see the transposition into French law of the European directive dated 17 April 2019 on copyright and related rights in the digital single market, which will have implications for the publishing market as well as for the ones of other cultural goods protected by these rights. Indeed, this transposition will require, among other things, the adaptation of certain exceptions to copyright (the so-called “data mining” exception, the exception in favour of digital education, etc.), the revision of the unavailable works regime, the dissemination of works on online platforms and the strengthening of a common copyright contracts regime, which are likely to affect book publishers. The collective work edited by Professor Nicolas Binctin and Xavier Près provides insights into this transposition: “Directives 2019/790 and 2019/789 on Copyright in the Digital Single Market, Article-by-Article Commentary“, Bruylant, 2021.