Concept and Basics of Publishing Law
Das Publishing Law is an independent, central subfield of copyright law. It encompasses all the statutory provisions that regulate the legal relationship between authors—typically writers—and publishers regarding the publication, exploitation, and distribution of copyright-protected works. The focus is on the prerequisites, content, and legal consequences of a publishing contract, as well as the rights and obligations of both contractual parties. Publishing law is mainly anchored in the Publishing Act (VerlG), supplemented by provisions from the Copyright Act (UrhG) and other civil law regulations.
Legal Sources of Publishing Law
Publishing Act (VerlG)
German publishing law has been codified in the Publishing Act since 1901. This primarily governs the classic publishing contract, which concerns the production and distribution of physical copies of works (‘book publishing’). Electronic forms of exploitation are only partially covered by the VerlG; in such cases, the general provisions of the UrhG apply supplementary.
Copyright Act (UrhG)
The Copyright Act contains numerous provisions relevant to publishing law, in particular regarding copyright exploitation rights and appropriate remuneration (§§ 29 ff., § 31 ff., § 32 UrhG).
Civil Code (BGB) and Further Regulations
The general provisions of the German Civil Code on obligations and contracts apply subsidiarily to the publishing contract, insofar as the Publishing Act does not provide for special regulations.
The Publishing Contract
Definition and Content
The publishing contract is a reciprocal contract under the law of obligations in which the author (or a legitimate rights holder) undertakes to grant a publisher the right to reproduce and distribute their work. In return, the publisher undertakes to reproduce and distribute the work and to pay the author appropriate remuneration (fee). The publishing contract is regulated in detail in §§ 1 to 42 VerlG.
Essential Contract Components
Granting of Exploitation Rights: The author grants the publisher simple or exclusive exploitation rights for reproduction and distribution. Production and Distribution: The publisher undertakes to produce and publish the work in an appropriate manner. Remuneration: The contract determines the type and amount of the author’s fee, usually as a fixed sum (lump-sum remuneration), but often also as a share of sales proceeds (royalty model). Accounting and Bookkeeping Duties: The publisher is obliged to provide information and regular accounting.
Form and Conclusion
No special form is required for a publishing contract; it can be concluded in writing, orally, or by conclusive action. For evidentiary purposes and legal certainty, the written form is recommended.
Typical Contract Clauses
The publishing contract typically regulates in detail, among others:
- Print Run and Publication Date
- Design, Format, and Title of the Work
- Right of Return and Revocation according to § 41 UrhG
- Grounds for Termination and Notice Periods
Rights and Obligations of the Contracting Parties
Rights and Obligations of the Author
- Delivery of the Work: Obligation to deliver the complete work (manuscript-ready) on time and defect-free
- Cooperation: Cooperation in corrections and production of the work
- Right of Revocation: Option to revoke rights if the publisher fails to exercise them (§ 41 UrhG, § 32a UrhG for bestsellers; special cases in the VerlG)
Rights and Obligations of the Publisher
- Production and Distribution: Obligation to reproduce and distribute the work within a reasonable period
- Distribution and Promotion: Duty of care in production, promotion, and distribution in the interest of optimal dissemination of the work
- Accounting: Obligation to provide regular and transparent accounting to the author
- Freedom from Defects: Responsibility for proper production and delivery
Transfer and Scope of Exploitation Rights
Through the publishing contract, the publisher is granted the right to reproduce and distribute the work for the purpose of publication (§ 8 VerlG, §§ 15 ff. UrhG). The rights may be granted either simply (several publishers may use them) or exclusively (only the contracting party may use them), and may be limited by time, location, or print run. Exploitation rights for other types of use, such as digital editions (e-book, online publication), must be expressly stipulated, since the traditional publishing act does not automatically include such rights.
Termination of the Publishing Contract
Ordinary and Extraordinary Termination
The publishing contract can be concluded for a fixed term or indefinitely. Possibilities, periods, and requirements for ordinary termination generally derive from the contract, but the VerlG contains special protective provisions, such as those in favor of the author (§ 27 VerlG).
Revocation and Withdrawal Rights of the Author
Statutory revocation rights have a special status:
- Revocation Due to Non-Exercise (§ 41 UrhG, § 29 VerlG): If the work is not exploited, or not sufficiently exploited, the author can revoke the exploitation rights.
- Revocation Due to Significant Change of Conviction (§ 42 UrhG): Personality rights protection when continuing the contract becomes unacceptable to the author.
Remuneration Claims Upon Contract Termination
Upon termination of the publishing contract, the rights granted by the author generally expire; remaining stocks may be exploited or returned by agreement. The author retains his or her right to contractually agreed remuneration until the final settlement.
Special Publishing Relationships and Digitization
Academic and Music Publishing
Special regulations may apply to academic, didactic, or musical works, particularly regarding the granting of rights for adaptations and translations.
Digital Publishing Law
The emergence of digital publication forms has raised numerous new issues, especially concerning e-books, online libraries, and database works. These matters are mainly governed by the UrhG. In particular, rights for digital exploitation must be expressly granted, as they are not automatically included in the traditional sense.
International Aspects of Publishing Law
International Publishing Agreements
In cross-border situations, international publishing contracts may be concluded. The applicable law is either contractually agreed upon or legally determined, generally relating to the location of the publisher or the author.
International Agreements
Internationally, publishing law is influenced by agreements such as the Berne Convention and the Universal Copyright Convention (UCC), which set minimum standards for copyright protection and exploitation of works in international transactions.
Protection and Enforcement of Publishing Rights
Legal Remedies
Authors and publishers can request injunctive relief, removal, damages, and information in cases of violations of the rights granted by contract. Judicial avenues are open to them; frequently, out-of-court settlements are sought first.
Collective Rights Management
Collecting societies play a significant role, especially in managing rights for digital and secondary forms of exploitation (e.g., libraries, streaming).
Summary
Publishing law forms the legal foundation for the relationship and cooperation between authors and publishers. It secures both the economic interests of authors and the investment interests of publishers and provides a balanced legal framework for the publication, use, and exploitation of creative works in both print and digital form. Due to technological advancement and continual changes in the publishing sector, publishing law is constantly evolving through legislation and case law to adapt to new requirements.
Frequently Asked Questions
What are the legal considerations when transferring publishing rights?
When transferring publishing rights, it must be noted that these constitute a special form of copyright exploitation right, which is granted by contract according to §§ 31 ff. UrhG. The publishing contract must be in writing, as this is the only way to ensure that rights are effectively granted. The contract should regulate, in particular, the scope of the rights transferred (for example, which editions, languages, or countries), the duration, and the type of usage (such as print, audiobook, or e-book). Successive editions and digital exploitation are not automatically included unless explicitly specified. The author generally cannot withdraw the granted rights without the publisher’s consent unless there is an important reason. Furthermore, remuneration must be transparent and appropriate (§ 32 UrhG), with provisions for minimum fees, revenue participation, and advances being common.
What obligations does the publisher have after concluding a publishing contract?
After concluding a publishing contract, the publisher is obliged to reproduce, publish, and distribute the work within a reasonable time period (§ 23 VerlG). The publication must be made in such a way that the legitimate interests of the author are protected. The publisher is also required to keep accounting records transparent and to provide the author with periodic (generally annual) reports and statements on utilization and any royalties (§ 22 VerlG). In addition, the publisher must not impair the rights to the work, meaning the text may not be altered or published in a manner contrary to the interests of the author without permission. This also includes careful production and proper marketing of the work.
In which cases can the publishing contract be terminated?
A publishing contract can be regularly terminated at the end of the agreed contractual term. In addition, extraordinary termination options exist, for example if a contractual party severely breaches its contractual obligations. Grounds for termination by the author may include the publisher failing to fulfill its obligation to publish and exploit the work, e.g., if the work is not published within the agreed or statutory period (§ 27 VerlG). Both parties also have the right to terminate for good cause, such as insolvency or persistent breach of duty. Termination must generally be made in writing and does not require a special form for its validity unless otherwise provided in the contract.
Which rights does the author retain after concluding a publishing contract?
Even after signing a publishing contract, all rights not expressly granted to the publisher remain with the author. In particular, the author’s moral rights and certain exploitation rights—such as the right to produce film adaptations, modifications, or translations—remain with the author unless explicitly transferred. The author can also make use of their work, for example by publishing samples, provided the contract does not exclude or limit this. The author maintains claims to be credited by name, to protection against distortion of the work, and to appropriate remuneration for subsequent exploitation. The author is also entitled to a separate, appropriate share for any new types of use that may arise in the future (§ 32c UrhG).
How is remuneration regulated in publishing contracts?
According to § 32 UrhG, the principle in publishing law is that the author must be paid appropriate remuneration. This is typically determined as a percentage of the net sales revenue (royalty), less commonly as a lump sum or an advance with subsequent offsetting against the royalty. The contractual arrangement must be transparent and must not result in unreasonably low remuneration. If the circumstances of use change at a later date, the author may insist on renegotiation (§ 32a UrhG, bestseller provision). The publisher is also required to inform the author at least once a year about the amount, composition, and calculation basis of the earnings and settlements (§ 32d UrhG).
Which different types of publishing are distinguished legally?
Legally, a distinction is made between the classic book publisher, who reproduces, distributes, and markets the work; the music publisher, who exploits musical works; and other special forms such as newspaper publishers, digital publishers (e-book, online), and self-publishing. The respective statutory regulations depend on the subject matter of the contract and may differ especially with respect to digital rights exploitation or combined types of use. It is important to note that, depending on the type of contract and medium, the modalities for transfer, remuneration, and publication obligations may vary.
What options does the author have if the publisher does not publish the work?
If the publisher does not publish the work within the contractually or legally stipulated period, the author may, pursuant to § 27 VerlG, set a grace period. If this passes without result, the author is entitled to extraordinary termination and may demand the return of rights. Furthermore, the author may claim damages if non-publication has caused a loss. The right of revocation also applies if the publisher does not exploit the work in accordance with the contract or makes unlawful use of the rights. This strengthens the author’s position and ensures that works are not permanently blocked by the publisher’s inactivity.
