On 18 December 2009, the Autorite' de la concurrence (hereafter: the Autorite') delivered its opinion on the possible implementation of retail price maintenance scheme for digital books at the request of the Minister for Culture and communication. The Minister wanted to check whether a new scheme for digital books could be inspired by the legal provisions that apply to printed books (the so-called “Lang law”), which have already been examined by the Court of Justice of the European Union pursuant to referrals for preliminary rulings and internal market proceedings. The Autorite' delivered its opinion after having heard the main stakeholders.
In light of a fast-developing and infant market, the Autorite' is of the opinion that such a legal framework is not adapted to digital books at the present stage since it may hinder positive market developments.
The “Lang law” of 10 August 1981, which applies to printed books, pursued the three following objectives: first, ensuring equal access of citizens to books, second, maintaining a very dense distribution network, and third, fostering pluralism in the areas of creation and publishing.
Applying the same system to digital books would hardly serve those aims. Indeed, online distribution, in itself, makes distribution easier over the entire territory and complements brickand- mortar distribution. Moreover, digital editing will probably entail lower editing, translation and dissemination costs and will nurture the "long tail phenomenon", by which sales may increase only a long time after the date of first issue. Last, an analysis of the current state of the digital book market does not show tangible risks that the market might be pre-empted by one or more pioneering operators that would only market “blockbuster” books.
The Autorite' therefore recommends not to adopt legislative measures, at least at the present time, and to continue to observe market developments for two years. It will be then time to draw conclusions about the concrete operation of various contractual models (net book agreements, open or closed technical system for downloading books, commercial/agent relations, mandates analogous to those of the press sector, broker contracts).
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