Publishing law for publishers, authors and digital publication models

Publishing law: contracts, chains of rights & digital publications

Quick start: what is your matter about?

Your contact: Jean Paul P. Bohne, LL.M., MM

Partner, certified specialist lawyer for copyright and media law and for IT law (Fachanwalt für Urheber- und Medienrecht, Fachanwalt für IT-Recht).

Send publishing law enquiry

What happens after your enquiry?

After your enquiry, we get back to you within 24 hours on working days. The first contact is free of charge. We inform you explicitly before any costs arise.

1. A short description is enough. Describe the work, the contract and your concern. The publishing contract, amendments, royalty statements and correspondence on the use are helpful.
2. Receipt and initial sorting. We assess the enquiry on the basis of the project described, the documents and the apparent goal. Deadlines and dates should be clearly recognisable.
3. Suitable starting point and cost range. We clarify whether an initial consultation, a service package or a specific mandate is the next step. As soon as the scope of the review is clear, we tell you the cost range – before work begins.

Typical cases from our practice

The following scenarios are abstracted and simplified. Which solution holds up always depends on the specific facts and the contractual situation.

What you will have at the end

When publishing law becomes commercially critical

In practice, publishing law is contract law, exploitation law and market regulation law at the same time. It becomes critical whenever rights, revenues and distribution channels no longer match.

• A publishing contract, author contract, translator contract or editor contract is to be concluded, revised or terminated.
• Print rights are regulated, whereas digital types of use are only described in general terms or not at all.
• Royalties, advances, special sales, subsidiary rights and reporting cannot be properly traced commercially.
• A publisher wants to re-exploit older titles as e-books, audiobooks, database products, app content or platform offers.
• International rights, territorial splits, language versions or sublicences are unclear or incompletely documented.
• Price promotions, direct sales, shop systems or platform models touch on fixed book prices and distribution control.
• Operational cooperation between editorial, rights, sales, marketing and management no longer works properly from a legal perspective.

What these mandates are usually really about

Not abstract textbook questions, but control over uses, robust chains of rights, predictable revenues and the avoidance of later blockages. Anyone relying only on standard clauses here often merely shifts risks into the future.

Publisher

Programme, rights portfolio, digital exploitation, pricing and distribution logic

Professional authors

Exclusivity, term, remuneration, transparency and approaches to reclaiming rights

Platform and distribution models

Scope of rights, terms, reporting, fixed prices and international scaling

Legal framework and appropriate classification

Publishing law classically begins with the publishing contract, but has long since gone beyond it. Modern publishing models require the Verlagsgesetz, copyright contract law, distribution and international rights practice to be considered together.

The starting point is the Act on Publishing Law (Verlagsgesetz – VerlG) (opens in a new tab). Added to this are the Act on Copyright and Related Rights (Urheberrechtsgesetz – UrhG) (opens in a new tab), the Act on Fixed Book Prices (Buchpreisbindungsgesetz – BuchPrG) (opens in a new tab) and general contract law. In cross-border exploitation, international protection systems such as the Berne Convention at the World Intellectual Property Organization (WIPO) (opens in a new tab) also apply. For transparency, fair participation and adjustment, Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (opens in a new tab) is also important background.

For classification within the ITMR context, the decisive point is: publishing law is not merely a sub-case of copyright law, but neither is it identical with the whole of media law. As soon as the focus lies on the publishing contract, the publishing chain of rights, commercial exploitation, fixed book prices and contract-based digital exploitation, this page is the right starting point. If, on the other hand, it is primarily about infringement, takedown, warning letters or procedural enforcement, copyright law or licensing and rights clearance is often closer to the actual problem.

Why this distinction helps in a mandate

Anyone treating the topic too broadly quickly loses sight of the commercial core. Publishing law is almost always about the robust connection of work, contract, exploitation and distribution.

What ITMR advises on in publishing law

The need for advice often arises from the interplay of contract drafting, rights history, reporting, digital exploitation and distribution control.

Contracts and amendments

Review, drafting and negotiation of publishing contracts, author contracts, translator contracts, editor contracts, supplementary agreements, amendments and termination or unwinding arrangements.

Chains of rights and portfolios

Analysis of old contracts, backlist portfolios, catalogues of subsidiary rights, consent regimes, grants of rights and documentary weak points in the rights history.

Digital exploitation

Classification of e-book, audio, platform, archive, database and app uses, including questions on digital rights management (DRM), distribution terms and metadata.

Remuneration and reporting

Review of royalties, advances, revenue definitions, special sales, licence chains, transparency obligations, accounting mechanisms and commercial adjustment.

Distribution and fixed book prices

Support with direct sales, shop systems, platform models, price promotions, bundle ideas, retailer relationships and distribution-related market conduct issues.

Contentious disputes

Out-of-court and court resolution of conflicts over scope of rights, exploitation, payment, reporting, termination, reversion and sublicences.

Depending on the case, adjacent fields at ITMR are closely involved, in particular contract management, IT law, e-commerce, competition law and the outsourced legal department for ongoing support.

Publishing contract and contract architecture

The commercial viability of a publishing contract depends on the precision of its architecture. Unclear catch-all formulas rarely create flexibility, but usually disputes over interpretation.

Subject matter and version of the work

It must be clarified which work is meant and in which version, and with which editing stages, illustrations, supplementary materials, metadata or series references work is being done. Series, specialist media and multi-stage content products in particular need precision here.

Types of use and scope of rights

Print, e-book, audiobook, database, archive, platform distribution, newsletter, reading sample, app use, training or corporate licence and international subsidiary exploitation should be treated as separate commercial uses. A single general clause often cannot robustly cover this variety.

Exclusivity, territory and term

Whether rights are granted exclusively or non-exclusively, for which territories, languages and terms they apply and under which conditions they revert in whole or in part belongs in the contractual core zone. Especially with territorial splits and international rights, proper coordination is decisive.

Sublicensing and consents

Who may grant audio, paperback, foreign, platform or other third-party exploitation, whether consent is required and how revenues are distributed should be expressly regulated. Without this structure, commercial scaling quickly becomes prone to conflict.

Publication, new editions and programme maintenance

Publication deadlines, the core obligations of exploitation, subsequent editions, remainders, delisting, republication and backlist maintenance must be described realistically. Older contracts in particular leave open how to deal with digital reactivation or longer periods of non-use.

Warranties and approvals

Content warranties, indemnities, review obligations, approval routes, personality rights and quotation risks and the involvement of editors, translators or third-party authors deserve particular attention when several parties contribute to a title.

Particularly prone to error

• “all known and unknown rights” wording without commercial differentiation
• digital rights without their own remuneration or reporting logic
• old contracts that only appear to cover today's platform and audio exploitation
• sublicensing models without clear consent and accounting mechanisms

For larger portfolios, the work does not end with the individual contract. It is then often about standardisation, amendment logic, deadlines, documentation and the robust maintenance of recurring contract templates in contract management.

Remuneration, transparency and adjustment

Remuneration in publishing law is more than a percentage. What matters is whether the model reflects actual use, covers later exploitation steps and remains commercially traceable.

The classic questions about royalties and advances remain important but are not sufficient. In particular, revenue definitions, tiered models, special sales, returns, free promotions, package or bundle offers, platform remuneration, advertising programmes, library or database exploitation and participation in subsidiary rights must be reviewed. Besides the nominal amount, the actual value of the model is decisive.

Continue to Section 32a Urheberrechtsgesetz on further participation (opens in a new tab), Section 32d Urheberrechtsgesetz on transparency (opens in a new tab) and Section 32e Urheberrechtsgesetz on information and accountability in the licence chain (opens in a new tab).

Royalty models

A percentage is only robust if it is clear what it is applied to. Whether the retail price, net revenue, adjusted platform turnover or sublicensing revenue is the basis can change the commercial result considerably.

Advances and offsetting

Advances should always be considered in terms of their offsetting logic. Constellations in which it remains unclear which exploitation segments can be offset and which cannot are problematic.

Reporting and depth of data

The more digital the model, the more important robust information obligations become. Without clear reporting and evidence rules, neither can claims be reviewed nor can strategic decisions be made on a robust basis.

Additional participation

If commercial use clearly exceeds the originally agreed value, questions of further fair participation may arise. Whether these apply in the individual case depends on contract, work, market, investment situation and actual success.

Practical questions in reviewing a mandate

• Which types of use trigger participation at all?
• Who reports at what intervals and with what level of detail?
• How are sublicences, platform uses and special promotions accounted for?
• Is the remuneration only formally in place or also commercially plausible?

Digital exploitation, platforms and abroad

Today, most value creation questions in publishing law no longer arise solely in the classic print business. Digital exploitation requires its own rights and distribution logic.

E-books, audiobooks, reading subscriptions, corporate licences, archive products, database models, platform distribution and cross-border exploitation must be properly covered in the contract. This concerns the grant of rights and equally technical and operational topics such as metadata, discoverability, termination rights, platform terms of use, pricing logic, geo-restrictions, data access and later reversion of rights.

Especially with international models, looking at the first contract is often not enough. Territories, language versions, sublicences, audio uses, archiving and multiple exploitation interlock. Anyone wanting to work commercially cleanly here often has to reconstruct the rights history title by title or portfolio by portfolio and not just use new template contracts.

Backlist and re-exploitation

Older contracts often only partly cover modern uses. The commercially valuable task is then to review old rights holdings robustly instead of merely assuming their reach.

Self-publishing and distributors

Self-publishing often follows a different economic logic than the classic publishing contract. Decisive there are in particular platform terms, exclusivity programmes, ranking and advertising functions, termination options and access to usage data.

Platform distribution

Anyone working via marketplaces or international distribution services must take into account contract terms, product presentation, price control, blocking risks and responsibilities along the supply chain. This often includes interfaces with IT law and e-commerce.

Practical reference at ITMR

For a specific platform constellation with an international dimension and copyright classification, the article International e-book platform and copyright infringement is an obvious in-depth read.

Where digital exploitation goes off the rails particularly often

When contracts formally mention “digital” but do not properly regulate which types of use are actually covered, who may exercise them, how revenues are broken down and how to deal with new forms of exploitation.

Fixed book prices and distribution

For publishers and distribution models, fixed book prices (Buchpreisbindung) are direct distribution regulation. Anyone separating price, product design and distribution channel runs into unnecessary operational risks.

The Buchpreisbindungsgesetz obliges publishers or importers to set binding final prices for fixed-price books. Electronic products that reproduce or substitute books and are predominantly typical of publishing or the book trade are also covered. Precisely for this reason, shop structure, platform listings, voucher logic, bundle ideas, advertising promotions, special editions and price change processes should not be planned in isolation from one another.

Continue to the full text of the Buchpreisbindungsgesetz (opens in a new tab).

As soon as fixed prices, market conduct and distribution converge, competition law is regularly also affected. If shop or platform processes are implemented technically, a look at e-commerce is also needed.

Particularly risky

• vouchers that commercially act like discounts on fixed-price titles
• bundle or promotion models without clear product and pricing logic
• platform control that is not coordinated with your own direct sales
• hasty assumptions about the classification of digital products

When you need us

Disputes in publishing law rarely begin with a single clause. Usually it is about the commercial consequence of several unclear points that only become visible in ongoing operations.

Mandates from the publisher's perspective

Setting up or revising contract templates, review of one-sided legacy holdings, digital re-exploitation of backlists, structuring of subsidiary rights, rights clearance before international deals, accounting and reporting conflicts as well as fixed-price and distribution topics.

Mandates from the perspective of professional authors and rights holders

Review of exclusivity, term, territory and remuneration mechanism, assessment of insufficient exploitation, review of royalty statements, questions of transparency, additional remuneration, termination, withdrawal or approaches to reclaiming rights.

Where adjacent practice areas take over

For infringement, warning letters and enforcement in court, the focus is often on copyright law. For larger journalistic and reputation-related constellations, media law is closer. Pure rights clearance and sublicensing often run better via licensing.

When it is already contentious

Then, besides the legal position, the preparation of the facts is above all decisive: contract versions, amendments, rights history, approval routes, royalty statements, platform data and correspondence must be robustly sorted. For escalation to court, ITMR offers procedural law and litigation PR.

Advice from ITMR

When publishing contract, digital exploitation, chain of rights and distribution converge, an early legal structure is generally considerably cheaper than later correction in the event of conflict. ITMR supports one-off reviews as well as ongoing advisory mandates.

Obvious first contact

Jean Paul P. Bohne, LL.M., MM advises at ITMR on publishing law with close links to copyright law, media law, IT law, fixed book prices and chains of rights.

Further suitable contact

Emma-Marie Kürsch is a sensible contact when publishing law closely converges with copyright law, trade mark aspects, licensing or media-related use questions.

Ongoing support

For publishing houses, media companies, platform models and rights holders with recurring contract and approval topics, the outsourced legal department is often commercially more sensible than purely case-by-case handling.

Further articles

Special questions sensitive for publishers can be found at ITMR under International e-book platform and copyright infringement and Legal dispute over Google snippets.

Continue to send a publishing law enquiry and ongoing advice for a publisher or media company.

Key terms

Verlagsvertrag (publishing contract)

Contract on the reproduction and distribution of a work under the Verlagsgesetz.

Nutzungsart (type of use)

Specific form of commercial exploitation, for example e-book or audiobook.

Nebenrechte (subsidiary rights)

Rights for translation, paperback, audiobook or film adaptation.

Backlist

A publisher's older titles that are still available.

Buchpreisbindung (fixed book prices)

Obligation to uniform final prices under the BuchPrG.

Angemessene Vergütung (equitable remuneration)

Claim under Sections 32 et seq. UrhG.

These terms explain the language used on this page. What matters is always the specific individual case.

Provisions and reliable sources

The following statutory provisions and regulations are cited on this page.

Frequently asked questions on publishing law

The answers are deliberately nuanced. In publishing law, the result almost always depends on contract, exploitation, rights history and market model.

Discuss your publishing law matter