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What is a publishing agreement?

​A publishing agreement is a contract whereby the creators or rights holders assign, for a consideration (in exchange for an economic remuneration), certain rights for the exploitation of their works, specifically reproduction and distribution rights (and Public Communication in some cases, commonly in musical publishing agreements) in favour of a publisher (either an individual or a body corporate) so that the publisher takes charge, on its own account and at its own risk, of carrying out the dissemination and exploitation of the works in question, in exchange for share in the economic returns from the same. Publishers are therefore obliged to provide their own know-how, resources and infrastructure to achieve the maximum dissemination of the works. This type of agreement is characterized by being entered into with a specific person (the publisher) so the fiduciary component is very strong. In such agreements, the assigning creator retains all the powers related to moral rights, as well as all those forms of ownership rights that have not been expressly assigned or that are impossible to assign.

These contracts are regulated in Chapter II of Part V of the Intellectual Property Act, which sets out special rules for publishing agreements in book formats and for musical publishing agreements. In this respect, certain peculiarities of these contracts should be noted: thus, a musical publishing agreement does not require the prior determination of the number of copies and the maximum duration of the publisher's obligation to put the copies in circulation in a sole or first edition cannot exceed two years in the case of literary publishing and five years in the case of symphonic or musical drama works counted from when the author delivers the work to the publisher. It should be recalled that a musical publishing agreement does not have any maximum duration (unlike what happens with publishing contracts for book formats, which are limited to ten or fifteen years, depending on the type of remuneration agreed).

The publisher's share of the economic returns from the exploitation of the work cannot exceed 50 per cent of the return generated by the work. In this way, creators are always assured of having a fair share of the fruits of their work.