Definition and concept of the publisher
Der Publisher is a legal term from publishing law that refers to the person or institution that entrusts a work to a publisher for dissemination. The publisher is therefore the natural or legal person who holds the copyright or entitled rights to a work and, under a publishing contract, transfers the right to publish, reproduce, and distribute the work to the publisher. The position of the publisher is mainly governed by the Publishing Act (VerlG) and the Copyright Act (UrhG).
Legal basis for publishers
Publishing Act (VerlG)
The Publishing Act of 1901 comprehensively regulates the legal relationship between publisher and publisher. In particular, it defines the rights and obligations of both contracting parties. Although the Publishing Act does not explicitly define the term ‘publisher,’ its meaning is derived from statutory provisions and the legal commentary literature. The publisher is the contractual party who offers the work or service for publication within the context of a publishing agreement.
Copyright Act (UrhG)
The Copyright Act is relevant because the publisher is usually the holder of the copyright-related powers in the work. The publisher may be the creator (author) themselves or a legal successor (e.g., heir, assignee, or licensee). The transfer of rights of use to the publisher is based on the Copyright Act and is specified in the publishing contract.
Rights of the publisher
Under a publishing contract, the publisher typically retains certain rights:
- Exploitation rights under copyright law: The publisher is usually the author or legal successor and has all copyright powers not expressly assigned by contract.
- Claim for remuneration: According to legal provisions, the publisher is entitled to remuneration for granting publishing rights, often in the form of advances and/or shares in sales revenues (fees, royalties).
- Control rights: The publisher has the right to information and control regarding accounting and print run (§ 27 VerlG).
- Right to be named: The publisher is entitled to be named as author if they are also the creator of the work (§ 13 UrhG).
Obligations of the publisher
The publisher bears various obligations arising from the publishing contract or by law:
- Granting of rights: The publisher must grant the publisher the necessary rights to reproduce and distribute the work (§ 8 VerlG).
- Obligation to deliver: He is obligated to deliver the work in a usable form, on time, and in the contractually agreed manner.
- Guarantee of rights ownership: The publisher usually guarantees that he is the sole owner of the rights granted and indemnifies the publisher from third-party claims (warranty obligation).
- Obligation to cooperate: Depending on the agreement, the publisher may be required to cooperate in creating the work (e.g., corrections, revisions, approval of changes).
Legal position of the publisher in the publishing contract relationship
Conclusion of contract
The publisher is the original contractual partner and enters into a publishing contract with the publisher pursuant to §§ 1 ff. VerlG. The specific freedom of design with regard to the granting of rights is subject to the limitations of copyright law and the mandatory provisions of the Publishing Act.
Copyright law special provisions
In cases where the publisher is not identical with the author, special written form requirements must be observed (§ 31 UrhG). The transfer of rights must be declared clearly and provably.
Differences from the editor
The publisher is legally distinct from the editor. While the editor is responsible for the content and, if applicable, editorial design of a publication, the publisher is the contractual partner in the publishing contract and the holder of the rights to the work being published.
Forms and types of publishers
Publishers can appear in various constellations:
- Individual authors: The most common form is that the author, composer, or artist acts as a publisher and offers a new work to the publisher.
- Legal successors: After the death of an author, an heir or executor may act as publisher.
- Legal entities: Companies, associations, and collecting societies sometimes act as publishers when managing rights to collective works or works of their members.
- Several co-authors: In the case of joint works, the community of co-authors acts as publisher; decisions are made jointly.
Termination of the publishing relationship and reversion rights of the publisher
The relationship between publisher and publisher may end by expiration of time, ordinary termination, or extraordinary termination. In certain cases, such as insolvency of the publisher or non-publication of the work, the publisher is entitled to reversion rights under §§ 38, 39 VerlG, so that the rights of use granted by contract revert to him.
International publishing law and publishers
In an international context, the rules concerning the legal status of the publisher are guided by the provisions of the Berne Convention for the Protection of Literary and Artistic Works, as well as by the national provisions of international private law applicable to the contractual relationship. In many countries, the status of the publisher is similar to that under German law, although regulations regarding contract, remuneration, and warranty may vary.
Bibliography
- Publishing Act (VerlG)
- Copyright Act (UrhG)
- Dreier/Schulze, UrhG, Commentary
- Schricker/Loewenheim, Copyright Law
- Czychowski, Handbook of Publishing Law
Summary: The term ‘publisher’ in German publishing law describes the contracting party who provides a work to the publisher for publication and grants the necessary copyright usage rights. The rights and obligations of the publisher are determined by the Publishing Act and copyright law. The legal position particularly comprises the transfer of rights, remuneration claims, control rights, and various cooperation duties. The detailed structure of the relationship is governed by the publishing contract, and specific reversion rights may accrue to the publisher when the contract ends.
Frequently asked questions
What legal obligations does a publisher have under a publishing contract?
A publisher is obliged by the publishing contract to hand over the work (for example, a manuscript) to the publisher in a contractually agreed, final, and print-ready form. He must ensure that he holds all necessary rights of use in the work and that no third-party copyrights are infringed. This also includes the obligation to inform the publisher about any legal disputes concerning the work or existing third-party rights. Furthermore, there is a duty to perform all agreed cooperation actions, such as answering legal questions, correcting defects, or providing supplementary materials. If a work is delivered with defects or is incomplete, the publisher must correct this within a reasonable period upon request from the publisher. If the publisher does not fulfill these obligations, this can result in claims for damages, withdrawal rights, or warnings on the part of the publisher.
How does copyright law regulate the transfer of rights by the publisher?
Under German copyright law, specifically in publishing law (see §§ 8 ff. Publishing Act and §§ 31 ff. UrhG), the publisher grants the publisher simple or exclusive rights of use to the work. This transfer is generally limited to the purpose of the publishing contract, especially reproduction and distribution of the work. The specific scope of the rights granted (such as print, e-book, audiobook) must be explicitly and clearly specified in the contract, otherwise unmentioned types of use remain with the author (the publisher). The publisher therefore often remains the holder of copyright but grants the publisher certain rights of use. The transfer of rights that are not expressly mentioned or of future rights is subject to statutory restrictions (§ 31a UrhG). If third parties are infringed, the publisher is liable.
What claims does the publisher have in the case of copyright infringements by the publisher?
If the publisher exceeds the rights granted to him, for example, by exploiting the work in unauthorized forms of use or countries, the publisher can assert various claims. These include claims for injunctive relief and removal, claims for damages (e.g. lost license fees), and claims for information on the nature and extent of the unauthorized use. The claims are based on the general provisions of copyright law (§§ 97 ff. UrhG) and can be contractually expanded or specified in individual cases. The publisher can in particular demand that unlawfully produced copies be destroyed (claim for destruction).
What warranty and liability provisions apply to the publisher?
The publisher is contractually and tortiously liable for defects in the delivered work, in particular for factual accuracy, absence of defects, and lawfulness (for example, no plagiarism, insults, or violations of personal rights). In the case of legal defects—e.g., if a third party claims the work is not original or rights have been exploited without authorization—the publisher must contribute to the indemnification of the publisher from third-party claims. In addition, the contract may contain individual liability limits, exclusion periods for complaints about defects, or excess clauses, with mandatory legal provisions (e.g., for gross negligence or intent) always taking precedence.
To what extent is the publisher obliged to cooperate with the publisher?
In addition to the main obligation to deliver the work, the publisher has a far-reaching duty to cooperate in the production, editing, and publication of the work. He must assist in proofreading, answer editorial queries, and, if applicable, approve the layout and cover. The precise arrangements can be specified in the publishing contract, for example, by deadlines or the type and scope of cooperation. If the publisher does not fulfill his obligations to cooperate, this may result in delays for which he may be held liable. In serious cases, the publisher may withdraw from the contract.
What applies to the return and further use of usage rights to the publisher?
After the contractually agreed exploitation period has expired or upon termination of the contract (e.g., termination, withdrawal), the usage rights granted by the publisher generally revert to him. In such cases, the publisher is obliged to make no further editions and to sell remaining copies only under certain conditions. The publisher may then exploit the work elsewhere or offer it to a new publisher, provided there are no contractual blocking periods or requirements to supply additional copies. An explicit contractual regulation is common and strongly recommended for legal certainty, especially concerning the return of originals and production data.
What information and disclosure rights does the publisher have vis-à-vis the publisher?
Under statutory provisions (§ 16 Publishing Act) and common contractual regulations, the publisher has a right to information and accounting regarding the distribution of the work, in particular on print run, sales proceeds, and remaining stocks. The publisher is required to provide regular statements and grant the publisher access to relevant documents. This serves to verify the correct calculation of royalties and licenses. If the publisher fails to fulfill his information obligations in a timely or proper manner, the publisher may sue for information and accounting and, if necessary, claim damages. These claims are privileged under the statute of limitations to ensure effective control for the publisher.
