Joris DeeneA publishing contract that lacks essential, legally required indications, such as duration, geographical scope or minimum circulation, is not automatically void. According to a ruling by the Brussels Court of Appeal on 3 April 2025, the contract can nevertheless remain valid if the author had practical knowledge of these elements and the protective intent of the law was thus respected.
The facts: a collaboration gone awry
The case revolved around a well-known cookbook author who initially published her works through her own company, Aladdin. In April 2008, Aladdin and a larger publisher, Amyris, entered into a "protocole d'accord" or framework agreement with the intention of integrating Aladdin's business with Amyris. Subsequently, the author personally signed seven separate "author-publisher" agreements with Amyris for the republication of specific titles.
After a few months, however, the cooperation broke down. In late November 2008, the author unilaterally decided to end the collaboration. She stated that Amyris could sell out the copies already printed, but could no longer print new copies. Amyris disagreed and continued to reprint and sell the books, leading to a legal dispute over breach of contract, the validity of the contracts and payment of copyright fees.
Appeal court decision
The French-speaking business court in Brussels had declared the copyright contracts null and void because they did not contain all the statements required by the (former) Copyright Act. However, the Brussels Court of Appeal came to a different, more nuanced conclusion.
The framework contract was terminable
The court first held that the "protocole d'accord" was a framework agreement of indefinite duration was. Under general principles of law, such an agreement can be terminated unilaterally at any time, provided reasonable notice is given. The author had suggested giving Amyris a 52-week period to sell out the existing stock. The court considered this to be a reasonable time, which meant that the termination of the framework agreement had been done correctly.
The author's contracts were valid
This is the most crucial part of the judgment. The author argued that the seven specific publishing agreements were void because the geographical scope and number of copies of the first edition were not explicitly stated, in violation of the mandatory provisions of the (former) Copyright Act.
The court did not follow this reasoning. It stated that the reason (the ratio legis) of the law is more important than strict formalism. Although the entries were missing, it was clear that:
- The geographic scope (French-speaking Belgium) was implicitly and explicitly known to the author, who herself had expressed a desire to professionalize distribution in French-speaking Belgium.
- The author was an experienced professional who knew her own market perfectly well. She herself had provided Amyris with sales figures and print runs of previous editions prior to the contracts. As a result, she knew perfectly what to expect and the protection intended by the law had been met in practice.
The court therefore decided that the contracts were not void.
End of contracts after first printing
Although the contracts were valid, the court found that they were concluded for a single "sortie de presse" (print). This means that after the execution of that particular printing, the contractual obligations ended. Thus, Amyris had no right to reprint the books thereafter without a new agreement.
Unauthorized reissues lead to damages
Because Amyris still continued to reprint and sell the books after the partnership ended, the publisher made a infringement of the author's property rights. Amyris was ordered to pay the overdue copyright royalties. Because the publisher failed to submit correct sales figures, the court calculated the royalties owed based on the value of the remaining stock established with the publisher.
Legal analysis and interpretation
This judgment is an example of pragmatic and teleological law interpretation in copyright. Where the legislature imposes mandatory provisions to protect the typically weaker party (the author), a court will not blindly apply the nullity sanction if that protection was not compromised in the specific facts.
The provisions of the old 1994 Copyright Act (Sections 3 and 25) can be found today in Book XI of the Code of Economic Law, more specifically in Articles XI.167 et seq. and XI.195 et seq. The principles remain the same: a publishing contract must explicitly define the scope, duration, and compensation of the author, and for the first printing, also state the minimum print run.
The ratio decidendi of the court shows that the context of contracting prevails. An experienced author who provides the crucial data himself can hardly invoke the absence of that same data in the contract afterwards to claim nullity. This contrasts with a novice, inexperienced author, where a court might apply the legal form requirements more strictly.
What this specifically means
- For authors: Be extremely vigilant when signing a publishing contract. Make sure the duration (e.g., for one print or for multiple printings), the geographic scope and the fee are clear. However, know that if you are an experienced author, a mere technical omission in the contract does not automatically invalidate it. Document all pre-contractual communications about print runs and sales figures.
- For publishers: Always ensure that your model contracts include all legally required disclosures. Do not rely on the author's experience to "save" a flawed contract. This ruling shows that unauthorized reprints after the end of a contract can be costly, especially if you fail to provide transparent sales statements.
FAQ (frequently asked questions)
What disclosures are mandatory in a Belgian publishing agreement?
According to the Code of Economic Law, for each mode of exploitation, the author's remuneration, the geographical scope and the duration of the transfer of rights must be explicitly defined. For a paper publication, the contract must also specify the minimum number of copies of the first edition.
Can I simply terminate an indefinite publishing contract?
Yes, an open-ended contract can in principle be terminated unilaterally by either party. However, you must give reasonable notice to give your contracting party time to adjust to the new situation and avoid damages.
What if my publisher reprints my book without permission?
This is an infringement of your copyright. The publisher then acts without the necessary rights, and you can demand the cessation of sales and claim damages, often calculated based on the royalties you would normally have received.
Conclusion
This judgment highlights that the validity of a publishing contract depends not only on the letter of the law, but also on its spirit. When the author, the party the law is intended to protect, is fully informed, a contract can stand despite formal defects. It also demonstrates the importance of clear agreements on the duration of the transfer of rights to avoid subsequent breaches.
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