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Publishing eBulletin: Autumn 2019

21 November 2019

Welcome to the Autumn edition of the Publishing eBulletin. We’re back from the Frankfurt Book Fair with lots to discuss, including the role of the author in the page-to-screen boom, a cautionary tale for creative collaborators, and an interim answer to the question of whether second-hand e-books can be sold without the rightsholders’ consent.

The new age of page-to-screen adaptations: is the rightsholder king?

In September we hosted the BookBrunch breakfast briefing with The Night Manager executive producer Stephen Garrett on book-to-screen trends. Whilst book to film adaptations are almost as old as cinema itself, the arrival of Netflix, Amazon and other subscription video on demand services means that more books are being adapted into films and series than ever before.

Associate Zoey Forbes looks at the opportunities this creates for writers, agents and publishers in an article for BookBrunch which you can read here.

Contributors, collaborators, and joint authors: what we’ve learnt from Martin v Kogan

The recent Court of Appeal decision in Martin v Kogan provides useful guidance on when a literary work is the product of joint authorship and the extent to which contributions – however small – can amount to authorship.

The case concerns a dispute over the authorship of the screenplay for the 2016 biographical film Florence Foster Jenkins. The Court of Appeal held that the contributions of Kogan, who was the partner of the credited screenwriter Martin, were likely to be sufficient to make her a joint author of the screenplay under UK copyright law.

The decision is significant for any creatives who work in a collaborative fashion – whether that be friends or partners working together, co-writers, ghost-writers or contributing editors – and their publishers. We explore the key takeaways from the decision here.

Tom Kabinet: AG opines that the resale of e-books is unlawful in the EU

In our summer eBulletin, we looked at the Dutch case of Tom Kabinet and the question of whether copyright can be exhausted in a digital copy of a work such as an e-book. Whilst it has long been established that a physical copy of a copyright work (such as a book, journal, or CD) can be resold without the consent of the rightsholder, the law is currently unsettled as to whether this principle (known as ‘exhaustion’) extends to digital copies (such as e-books, e-journals, or digital music downloads).

Since our last update, Advocate General Szpunar has opined in the Tom Kabinet case that exhaustion does not apply to e-books under EU law. If his opinion is followed by the European Court of Justice (CJEU), this would mean that Tom Kabinet cannot resell e-books on its online platform without the rightsholders’ consent.

The opinion is good news for publishers and authors as it supports the rights of those who publish works digitally and recognises the risks to rightsholders that may arise from a second-hand market for ebooks and e-journals, including cannibalisation of the primary market and the increased risk of piracy.

You can read associate Zoey Forbes’ further comments on the case in the trade press here.

EU Copyright Directive: will it happen, what will it mean?

A frequent question at this year’s Frankfurt Book Fair was what the EU Copyright Directive means for publishers, agents, and authors based in the UK. Although the new Directive is now approved and must be implemented by Member States by 7 June 2021, the extended political uncertainty in the UK means it is still unclear whether the UK will implement the Directive at all.

In a piece for the Publishers Weekly/BookBrunch Frankfurt Book Fair Show Daily, partner Alex Hardy and associate Zoey Forbes reported on the three new rights that have the potential to significantly affect author contracts in the publishing industry if the Directive is implemented in the UK.

You can read the article here.

Signatures in the digital age

E-signatures were also on the agenda at Frankfurt, with the 33rd Frankfurt Rights Meeting holding a dedicated session on the legislative framework, best practice, and future trends for signing contracts electronically.

Despite the validity of e-signatures in many jurisdictions and their use by many businesses, there is still some reluctance in the publishing sector to deviate from the established practice of wet-ink signatures and uncertainty as to whether more ‘formal’ documents such as deeds can be executed electronically.

However, businesses and individuals operating in the UK can take comfort from a recent Law Commission report which confirms that electronic signatures can be used in most circumstances. Associate Katerina Capras provides further guidance on the use of e-signatures here.

Machine Thinking: how is AI impacting the creative industries?

As reported in our summer eBulletin, the use of artificial intelligence has long been a component of the publishing industry, however, recently we have seen more novel uses such as AI ‘authored’ works.

Partner Alex Hardy recently explored the issues around the use of AI in the creative industries with a panel of other experts at Byte the Book’s Machine Thinking: How is AI Impacting the Creative Industries? event.

The conversation ranged from defining AI and the historical bias of data to a future of avatar influencers and audiobooks read by voice clones.

You can read more here.

Upcoming conferences and events

Harbottle & Lewis will be at FutureBook Live on Monday 25 November.

You can email Zoey Forbes if you would like to arrange a meeting.

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