Contracts and liability concerning contents published on OpenEdition Books and OpenEdition Journals

A legal entity does exist from a legal point of view but cannot physically sign contracts. Therefore a natural person must be designated to represent and act on behalf of this legal entity. This natural person called the ‘authorised representative’ of the legal entity is entitled to sign contracts for and on behalf of the legal entity.

When a natural person (A) who is the sole authorised representative of a legal entity (B), delegates authority to sign to another natural person (C), C is thus entitled to sign contracts for and on behalf of B, within the limits set by A in the written document delegating to C the authority to sign (e.g. contracts up to a certain amount, or a certain type of contracts).

The ‘Director of publication’ is the natural person who is personally liable when contents (text, image, sound or audiovisual recording) published online, on paper or broadcast infringe the 1881 law on freedom of the press.

Link to the article 42 of law of 1881 translated in English: https://www.legifrance.gouv.fr/loda/id/LEGISCTA000006117630

Link to an explanation of the law of 1881 (in French): https://www.culture.gouv.fr/Thematiques/Presse-ecrite/Les-politiques-d-aide-a-la-presse/La-loi-du-29-juillet-1881-sur-la-liberte-de-la-presse

Under French law, a legal entity is an entity (e.g. a corporation or a public authority) that is recognised by law as having a legal existence. Legal entities under French law include:

• the French State,
• the French local authorities, i.e. the 17 regions and the Corsican authority, the 101 departments, the 34 945 municipalities,
• the French public establishments (such as the Bibliothèque nationale de France, the Centre national de la recherche scientifique),
• the companies registered in France (e.g. Société par actions simplifiée-SAS, Société anonyme-SA, Société à responsabilité limitée-SARL i.e. a limited liability company with at least two associates, Entreprise unipersonnelle à responsabilité limitée-EURL i.e. a limited liability company with a sole associate, etc).
• not-for-profit organisations under the condition that they have been registered in France (association de loi 1901 déclarée en préfecture).

A legal entity is most often created by two or more natural persons who come together to achieve a specific goal; they may be liable for the consequences of this activity. Some legal entities may be created by natural persons and by other legal entities.

Link to the definition:https://www.insee.fr/en/metadonnees/definition/c1251

A natural person is any human being who is recognised by law as having a legal existence, i.e. ‘the ability to be the holder of rights and the debtor of obligations’.

Link to definition: https://www.insee.fr/en/metadonnees/definition/c1558

French law of July 29, 1881 on freedom of the press governs criminal offences committed “through press or any other means of publication” (chapter IV of the law).

Link to the law: https://www.legifrance.gouv.fr/loda/id/LEGISCTA000006089707

OpenEdition contracts must be signed by the natural person who represents the legal entity supporting the publication. A legal entity must indeed be represented by a natural person.

If the natural person who represents the legal entity supporting the publication decides to delegate to another natural person the authority to sign, this other natural person is entitled to sign contracts for and on behalf of the legal entity supporting the publication.

If the publication is not supported by any legal entity, please refer to ‘Why is it important that a legal entity carries the publication?’

First of all, you need to identify the legal entity (or entities : there may be more than one) that supports the publication. Beware: some organisations have not been incorporated, hence they are not legal entities as they have no existence from a legal point of view (e.g. most laboratories if they have not been set up as a company or as an « établissement public » i.e. a public authority).

Once you have found the legal entity (or entities) supporting the publication, you need to identify the natural person who has been appointed as its authorised representative (or the natural person to whom the authorised representative has delegated the authority to sign).

Here follows a list of legal entities under French law, along with their authorised representatives:

• for a university or any other administrative public authority (i.e. établissement public administratif, EPA): its president;
• for a non-profit organisation under French law of 1901 if it has been registered with the ‘préfecture’, thus incorporated (association de loi 1901 déclarée en préfecture): its president;
• for a private company: depending on the legal status of the company incoporated, it may be either the president (of a Société par actions simplifiée-SAS or of a Société anonyme-SA) or the legal manager (‘gérant’) of a Société à responsabilité limitée-SARL (i.e. a limited liability company with at least two associates) or of an Entreprise unipersonnelle à responsabilité limitée-EURL (i.e. a limited liability company with a unique associate).

The only natural person entitled to sign contracts is the person who has authority to represent the legal entity carrying the laboratory (see ‘How can I identify the natural person who represents the legal entity carrying the publication?)

• Most laboratories are not recognised by law as having a legal existence. Therefore the laboratory’s members (be they directors) are not entitled to sign contracts with OpenEdition.
• However the director of the laboratory (or any other natural person specifically designated) may have officially received from the authorised representative (of the legal entity carrying the publication) the authority to sign for and on behalf of the legal entity, by way of ‘delegation of authority to sign’.
• If the laboratory has been incorporated as a legal entity, the natural person who is the authorised representative of the laboratory-entity is entitled to sign contracts.

The authorised representative of the legal entity carrying a University Press is the sole person entitled to sign contracts : please refer to ‘How can I identify the natural person who represents the legal entity carrying the publication?)’

• Under French law, University Presses are not usually incorporated as legal entities, therefore they have no existence from a legal point of view. The natural persons working there (be they directors) are not entitled to sign contracts with OpenEdition.
• However, the director of the University Press (or another natural person specifically designated) may have officially received from the authorised representative (of the legal entity carrying the University Press) the authority to sign for and on behalf of the legal entity, by way of a ‘delegation of authority to sign’.
• If the University Press has been incorporated as a legal entity, the natural person who is the authorised representative of the University Press-entity is entitled to sign contracts.

If more than one legal entity supports the laboratory that carries the publication (e.g. a laboratory without legal existence but that is jointly supported by two, three or more legal entities such as a university and a research center), you should check the contract or statute by which the two or three entities jointly set up the laboratory : that contract or statute should stipulate how the power (for decision making, for signing contracts) has been shared between them.

If the legal entities who jointly support the laboratory have not drawn up any agreement between themselves, you have to consult the authorised representative of each legal entity supporting the laboratory in order to find out who will be entitled to sign contracts.

When a natural person signs a contract in her or his name, and not on behalf of a legal entity, she or he may be held personally liable. The continuity of the publication may also be jeopardised if the natural person who made the commitment by signing the contracts happens to leave.

Therefore OpenEdition strongly recommends that you provide an appropriate legal framework for the publication.

If the publication is not carried by a legal entity, two options are open to you. You may incorporate a legal entity (hence give it a legal existence), for example by drawing up the statutes of a not-for-profit organisation such as the French association de loi 1901, and registering these statutes with the ‘préfecture’, thus making the association a legal entity (association de loi 1901 déclarée en préfecture). You may otherwise ask an existing legal entity (such as a University) to support your publication officially by endorsing it.

Under French law of 29 July 1881 on freedom of the press, the natural person identified on the journal or the website as director of publication will be held liable in the event that contents published in that journal or website constitute a press criminal offence.

If someone discovers that contents published in a journal or online are likely to be qualified as a press offence against he/her, he or she is entitled to contact the director of publication and request the removal of the potentially criminal contents. If he or she wishes to take legal action to either obtain compensation for the damage suffered or to request conviction of the guilty person, he or she has to sue the director of publication.

The French law of 29 July 1881 on freedom of the press requires that a director of publication be designated for every French periodical publication (whether printed or online). Article 6 of the 1881 law states that : « Every periodical publication shall have a director of publication ». The law adds that in most cases the director of publication shall be the natural person who is the authorised representative of the legal entity carrying the journal. The Director of publication shall by all means be a natural person.

The phrase ‘director of publication’ originates in the 1881 law : it designates (and helps identify) the natural person who may be held liable and sued in case contents published (in a journal or a book, online or not) do constitute a press criminal offence. Identity of the ‘director of publication’ must appear on every periodical publication (i.e. on each website and on every copy of a printed journal).

Therefore the phrase ‘director of publication’ has a specific legal meaning. It should not be confused with the phrases ‘editorial board of the journal’ or ’journal director’ which have no legal meaning. These positions might well be held by the same natural person (as the director of publication) but for other purposes. The phrase ‘director of publication’ designates the natural person liable if contents published constitute a press offence, whereas the phrases ‘journal editorial board’ and ‘journal director’ refer to the scientific and operational management of the journal.

First name and surname of the director of publication should appear on the website of every journal and OpenEdition must be informed of any change thereof to ensure that the person to contact be easily identifiable in case contents published in the journal constitute a press offence under French law.

Under French law, a written authorisation should be obtained from each author before publishing their work digitally. This applies to any type of work, whether it is a contribution to a journal, a chapter in a collective book or a monography.

A publisher who wishes to publish contents on OpenEdition under a Creative commons licence should have the author’s prior agreement in order to apply it on his/her work (unless the terms of the agreement enable the publisher to apply a Creative commons licence without having to mention that particular CC licence in the publishing agreement).

Shall be liable, in the following order as principal offenders, to the penalties for crimes and offences committed through the press:

1° The directors of publication or publishers, whatever their profession or title and, in the cases provided for in the second paragraph of article 6 [of the 1881 law, i.e. if the director of publication enjoys parliamentary immunity], the joint directors of the publication;

2° Failing them, the authors;

3° Failing the authors, the printers;

4° Failing the printers, the sellers, distributors and persons who put on display.

In the cases provided for in the second paragraph of article 6, the secondary liability of the persons referred to in paragraphs 2°, 3° and 4° of this article shall apply as if there were no director of publication when, contrary to the provisions of this law, a joint director of publication has not been appointed.

Every press publication must have a director of publication. […] Where a natural person is the owner or tenant-manager of a publishing company [as defined by the first article of law n° 86-897 of 1st August 1986 reforming the legal regime of the press] or holds a majority of the capital or voting rights, that person is the director of the publication. In other cases, the director of the publication is the legal representative of the publishing company.  […]

These articles 23 to 41-1 list a series of criminal offences (defamation, libel and slader…) and the penalties for each offence.

Link to the law (in French): https://www.legifrance.gouv.fr/loda/article_lc/LEGIARTI000006419708

The phrase ‘owner of a publication’ has no specific legal meaning. However, the phrase ‘the owner of the title of a publication’ may have a legal meaning: it means that the person (a natural person or a legal entity) holds an intellectual property right on the title of the journal, i.e. either a copyright or a registered trademark (or even both) on the title.

Please refer to: ‘Recommendations and key legal points when creating and distributing a scientific journal’ (in French).

To ensure digital dissemination of and open access to publications, it is necessary to conclude an agreement with each author of the works published.

Specific rules have been adopted in France regarding the publication of books: any book publisher established in France who wishes to publish a book in digital form must structure the publishing agreement and bring together in one part of the agreement all articles that concern the digital exploitation of the work (these articles stipulate what digital rights are granted by the author to the publisher, for what duration, on what geographical territory, if it is on a gratuitous basis or not, etc.).

See:

• Arrêté du 10 décembre 2014 pris en application de l’article L. 132-17-8 du code de la propriété intellectuelle
• Modèles de contrats pour l’édition publique adaptés à la science ouverte
• Mettre en œuvre la stratégie de non-cession des droits sur les publications scientifiques

The Creative commons licences (CC) are a legal tool by which the author (or the rightful owner of a copyright, such as the publisher) grants the right to use a work (a text, an image, a music) in various ways (copying, distribution, modification and adaptation) without being paid, while being fully compliant with copyright legislation.

Voir :

• Creative Commons licences
• Licensing policy of OpenEdition (in French)