ORIGINAL ARTICLE

<figure><img src="image_1.png" /></figure>

WILEY

# Summary survey on publishing contract in the OAPI space

Yvon Laurier Ngombé

Conservatoire National des Arts et Metiers
(CNAM), Ile de France (External Lecturer),
Paris, France

Correspondence

Yvon Laurier Ngombé, Conservatoire
National des Arts et Metiers (CNAM), Ile de
France (External Lecturer), Paris, France.

Email: contact@ngombejuris.com and

yvonlaurier@dbmail.com

## Abstract

The OAPI member states constitute a space for the harmonization of copyright in Africa. This harmonization is yet to be completed, as attested by the conventional rules relating to the publishing contract. In addition, investigating about the publishing contract in the OAPI space requires an examination of both the text of the Bangui Agreement and that of the national laws of the 17 member states. Some differences must be pointed out keeping in mind the question of possible conflict of laws.

## KEYWORDS

Africa, ARIPO, conflict of laws, contract, copyright, OHADA

Nothing that is finished is ever completely finished.

As long as everything that has been started is not completely finished.

(Pierre DAC)

## 1 | INTRODUCTION

A fundamental pillar of the law, so well described in his time by Doyen Carbonnier,¹ the contract is an essential tool for the legal exploitation of copyright. As for of literary and artistic property, one of the most important contracts is undoubtedly the publishing contract. It is the most important contract in this field. What is more, it is the matrix or prototype² which has served as the model for the common law of literary and artistic property contracts. As one

<footnote>This is an open access article under the terms of the [Creative Commons Attribution-NonCommercial-NoDerivs License](https://creativecommons.org/licenses/by-nc-nd/4.0/), which permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no modifications or adaptations are made.</footnote>

<footnote>© 2024 The Authors. *The Journal of World Intellectual Property* published by John Wiley & Sons Ltd.</footnote>
commentator on the March 11, 1957 law observed, "the publishing contract is the most common and most widely used form of assignment."⁵ This observation remains valid, at least in view of the detail with which it is governed in French law and in the OAPI countries. The publishing contract therefore deserves particular attention, especially in an area of integration such as that of the African Intellectual Property Organization (Organisation Africaine de la Propriété Intellectuelle [OAPI]). Indeed, this is an area of harmonization of literary and artistic property law, and it may be interesting to compare national laws with each other and with the supranational text.

Created in 1962 by the Libreville Agreement, the Office Africain et Malgache de la Propriété Intellectuelle (OAMPI) underwent an in-depth transformation in 1977 under the Bangui Agreement,⁴ when it became the OAPI.⁵ Until then, the body of legislation Annexd to the Agreement did not include any provisions relating to copyright. Since 1977, Annex VII of the Bangui Agreement has been the regional supranational text on literary and artistic property in the OAPI area.⁶ This text was significantly amended in 1999 and again in 2015 with the Bamako Act.⁷ The Bamako Act ratified by OAPI member states,⁸ of which there are currently 17, and came into force in 2020.

A summary Inquiry of the publishing contract therefore leads us to examine the 17 normative texts of the member states, as well as the supranational text Annexd to the Bangui Agreement, which constitutes, within the meaning of article 20 of the Berne Convention, an arrangement between the OAPI states.⁹ However, a detailed analysis of the publishing contract in the OAPI¹⁰ area is beyond the scope of this study. Rather, it is a matter of taking a brief look at the essential elements relating to the protection of the author in the context of the exploitation of his work. These include the framework of his consent, the guarantee of his participation in the fruits of exploitation, and the control of exploitation. It should be pointed out that the OAPI text, as well as the texts of the member states, contain provisions relating to the publishing contract and not to a variety of publishing contracts. The rules are therefore applicable to all publishing contracts.

In addition, the application of the publishing contract implies, over and above texts relating to literary and artistic property,¹¹ the subsidiary or suppletive invocation of common contract law.¹² It is partly with this normative coexistence in mind¹³ that we propose to report on this brief survey of publishing contracts in the OAPI region.

This brief survey of the publishing contract has led us to a quick vertical (I), then horizontal (II) examination of the norms applicable to the publishing contract.

## 2 | VERTICAL EXAMINATION OF RULES APPLICABLE TO PUBLISHING CONTRACT

For OAPI member states, Annex VII of the Bangui Agreement constitutes a conventional minimum directly applicable in member states.¹⁴ To use the vocabulary of the text in its version resulting from the Bamako Act (2015), the OAPI text constitutes a minimum normative framework. It is this conventional framework that we must first attempt to clarify (A) before verifying the extent to which national texts comply with it (B).

### 2.1 | look at the conventional framework for publishing contract

The provisions of Annex VII relating to publishing contract are to be found both in the provisions specific to publishing contracts and in the general rules governing contracts for the transfer of copyright. They can therefore be consulted with a view to any changes that may have occurred between the 1999 and 2015 texts.

In the version of Annex VII still in force for a few months, the treaty text expressly refers to national provisions on civil and commercial obligations, which govern publishing contract in particular.¹⁵ The absence of any reference to national copyright laws is surprising. However, such a reference is implicit. If the text of Annex VII of the Bangui Agreement, as revised in 1999, constitutes the "common regime" for artistic property, as specified in article 1er, it
goes without saying that this common regime is supplemented by national texts, including special texts relating to
literary and artistic property.

With regard to the special law governing publishing contract, the 1999 text merely defines them, distinguishing
them from author's contracts and half-account contracts, and then specifying the publisher's obligations.

The publishing contract is defined, both in the 1999 text and in the one current version, as "that by which the author of the work or his successors in title assign to the publisher, under specified conditions, the right to manufacture or to have manufactured a sufficient number of copies of the work, on condition that the latter ensures its publication and distribution."¹⁶ This definition, which remains unchanged in the 2015 version, applies to all forms of publishing, whether literary or musical.

This definition, which has not been amended in the revised version (2015), mentions "a sufficient number of copies." This definition could give rise to ambiguity. What is a sufficient number of copies? It will then be up to the judges to determine whether the number of copies agreed upon is sufficient to determine whether the assignment granted constitutes a publishing contract. Quite simply, a publishing contract presupposes commercial exploitation, and the number of copies reproduced must be sufficient to meet this objective.¹⁷

With regard to the publisher's obligations, in the 1999 text, article 42, entitled *Obligations de l'éditeur (publisher's obligations)*, simply sets out a single obligation (despite the plural form used) for the publisher: the obligation to render accounts.¹⁸ The new text completes the list of the publisher's obligations by stipulating, without specifying the terms, the obligation of permanent and ongoing exploitation, the obligation to mention the author's name, pseudonym or trademark, and the obligation not to make any modification to the work without the author's authorization. This means respecting the author's moral rights.

The provisions specific to publishing contract are not the only ones to be consulted to clarify the contractual
framework relating to this type of contract. In fact, many rules can be found in the provisions common to all
authors' contracts.

Among the common provisions, the 1999 text stipulates that moral rights are nontransferable. It lays down an
essential rule concerning the formation of authors' contracts, including publishing contract: the requirement of
writing *ad validitatem*. On this point, the text does not specify whether nullity is relative or absolute. The 2015
version is no more precise. This is of little consequence, as there seems to be no room for doubt. The nullity is
relative, as it is intended to protect the author.¹⁹ Member States' texts on obligations are along these lines. In
passing, we may wonder whether nullity was the most appropriate sanction. Indeed, as a large body of doctrine has
argued, nullity must be adapted to the nature and purpose of the sanctioned rule, and "the remedy must not be
worse than the evil."²⁰ The writing requirement could undoubtedly have been evidentiary, in favor of the author
alone.²¹

The text resulting from the 2015 Bamako revision specifies that the notion of writing includes "electronic media
in accordance with national legislation in force."²² The contribution of the new text therefore consists in mentioning
the electronic medium and referring to national legislation. This reference to national legislation concerns either the
notion of electronic media, or the very possibility of using electronic writing. As this is a minimum normative
framework, this provision should no doubt be read as meaning, on the one hand, that writing can be electronic and,
on the other, that electronic media will be determined by national laws.

In the African context, this requirement for writing calls for a number of observations. While this formalism is
conceivable insofar as it protects the author, the weaker party to the contract, it does not take into account the
reality of illiteracy in certain African states.²³ This calls for appropriate rules, including at supranational level. For
example, the use of literate witnesses or a sworn agent from the copyright collective management organization or
the authority responsible for supervising collective management organizations²⁴ could be suggested as possible
solutions.²⁵

In the meantime, for the 16 member states of both OAPI and OHADA, the OHADA Uniform Act on the Law of
Obligations, currently at the preliminary draft stage,²⁶ could provide the beginnings of an answer. In its current
version, the OHADA preliminary draft provides that "the illiterate party must be assisted by a literate witness who
certifies his identity and presence in writing; he also certifies that the nature and effects of the act have been made clear to the illiterate party."²⁷ This provision will be of great interest insofar as it will clarify the consent of the illiterate party and guarantee its integrity.

The preliminary draft OHADA Uniform Act on the Law of Obligations specifies that "if the illiterate party fails to obtain such assistance, he shall be deemed to have acquiesced in the deed if he has signed it."²⁸ This provision is less convincing, as it does not seem to protect the weaker party. However, the possibility remains for the author to invoke a defect in consent.

Some national laws already provide for the protection of illiterate contracting parties. This is the case of the Senegalese Code of Civil and Commercial Obligations, which stipulates that: "The illiterate party must be assisted by two literate witnesses who certify his identity and presence in the writing: they also certify that the nature and effects of the act have been specified to him."²⁹ This provision could be useful, as not all creators of works are necessarily literate. This could be the case of a musician who agrees to assign his song.

Among the general rules, Annex VII also lays down the rule prohibiting the global assignment of future works. On this point, it should be noted that neither the 1999 text³⁰ nor the 2015 text³¹ provides for any derogation from this principle.

It is also *possible* to limit the scope of the assignment in terms of duration, destination, territory and means of exploitation.³² This wording does not imply any obligation to specify the territory of assignment, the means of assignment or the duration. It does not, therefore, have the same scope as article L131-3, paragraph one of the French Intellectual Property Code, at least if we confine ourselves to its letter. Under French law, these are mandatory clauses, the absence of which renders the³³ contract ineffective.

This is not the case under Annex VII of the Bangui Agreement. Instead, the OAPI text lays down rules of interpretation, prima facie in favorem auctoris. Indeed, suppletive rules are provided in the event of failure to mention the territory, the means of exploitation or the extent of the assignment. In the first case, the transfer of rights will be limited to "the country in which the transfer [...] has been granted."³⁴ In the second case, the assignment will be considered limited "to the extent and means necessary for the purposes envisaged when the assignment was granted [...]"³⁵

These interpretative requirements imposed on judges could well be a source of difficulties. With regard to assignment limited to the country in which the assignment was granted. The question is whether this should be interpreted as the country in which the contract was signed. Such an interpretation could prove unfavorable to the author. For example, a Cameroonian author visiting Abidjan might sign a publishing contract without mentioning the territory of assignment. The application of the interpretative rule of Annex VII of the Bangui Agreement will lead the judge to consider that the assignment is limited to Côte d'Ivoire, whereas the author undoubtedly intended exploitation in his own country and not abroad.³⁶

As for the suppletive rule in the absence of precise details of the scope or means of exploitation, it seems to invite the judge to seek out the common intention of the parties. Moreover, insofar as the judge must limit the assignment to what is strictly necessary to achieve the intended purpose, the OAPI text may be considered to impose an interpretation in favororem auctoris.

With regard to the absence of any mention of the duration of the publishing contract, Annex VII does not provide for any consequences. It may be considered that the OAPI legislator is leaving this point to national legislation. However, unless it is considered that this mention is more important than the others, the lack of precision of the duration should not be sanctioned by nullity. Indeed, as drafted, the OAPI text seems to favor the validity of the contract, interpreting it in favor of the author. In this case, the lack of precision is not so serious (on analysis of the OAPI text) as to justify the judge declaring the contract null and void.³⁷

The Bamako Act supplements the regional text by laying down, as a general rule, the principle that the author's remuneration is proportional to the revenue from exploitation.³⁸ This rule, inherited from the French law of March 11, 1957 and inserted in the European directive on copyright in the digital single market,³⁹ was already included in the laws of member states. The OAPI text provides for two cases of derogation from the principle of proportional
remuneration: 1º the basis for calculating proportional participation cannot practically be determined; 2º the use of the work is incidental to the object exploited. These are two of the four general exceptions provided for in article 35 of the 1957 law.

With the Bamako Act, the minimum contractual framework is slightly broader than in the 1999 version. Conventional law on publishing contract is now much more ambitious, even if complementary national laws are inevitable. However, these texts will have to comply with Annex VII of the Bangui Agreement. It is now time to take a quick look at them.

## 2.2 | Research into the conventionality of complementary national laws

A perusal of member states' texts reveals a number of provisions whose conformity with the treaty text is open to question.

First, it should be noted that some OAPI texts do not give the written word the same scope as the conventional text. This is the case of Senegal's copyright law, adopted in 2005, which stipulates that: "with regard to the author, assignment shall be proved in writing or by an equivalent method." According to this law, writing is required *ad probationem et in favorem auctoris*. The requirement for a written document thus protects the author alone, who can prove the existence of a publishing contract by any means. Is Senegalese law therefore inconsistent with the OAPI text? A priori, the answer is yes. In fact, according to the Convention, the absence of a written document renders the contract null and void, whereas this is not the case in the Senegalese text. Since relative nullity can only be invoked by the author, the protected party, it may be considered that the application of either rule would lead to roughly comparable consequences. Nevertheless, the wording of the OAPI text and its supranationality should lead the judge to consider that the absence of a writing will be sanctioned by (relative) nullity.

Some texts are less explicit, although they appear to provide for the same rule as Annex VII. Beninese law, for example, both in its general provisions and in those specific to publishing contract, stipulates that the contract must be in writing. The scope of this requirement is not specified in the text. The imperative nature of this provision could lead the judge to consider that the text contains *a virtual nullity* with regard to the seriousness of the breach.⁴⁰ Moreover, the supranational nature of the OAPI text should lead to the conclusion that the absence of a written document renders the contract null and void.

Finally, other texts are perfectly in line with the regional text. Some of these, such as Annex VII of the Bangui Agreement, simply state that writing is required on pain of nullity⁴¹ or that a publishing contract is valid only if it is evidenced in writing,⁴² while others, more explicitly, specify that nullity is relative.⁴³

The provisions relating to the principle of proportional remuneration must also be compared with the OAPI text. On this point, it should first be noted that Guinea-Bissau's law is contrary to the regional text, insofar as it allows a choice between several remuneration methods, including a lump sum or even the delivery of a few copies to the author.⁴⁴ As for the other laws, they affirm the principle of proportional remuneration and envisage exceptions. On this point, as mentioned above, the regional text provides for two exceptions.⁴⁵ However, national texts envisage at least three hypotheses.

A distinction can then be made between laws that deal with exceptions synthetically, inspired by article 35 of the law of March 11, 1957, and those that, slavishly copying the 1957 law, also provide for special exceptions. Among the former are the laws of Benin, Senegal and Togo,⁴⁶ which, in addition to the two exceptions provided for in the conventional text, provide for a third case justifying lump-sum remuneration: when the control costs are out of proportion with the results to be achieved. The question for these laws is whether this third case can be considered contrary to the OAPI text. If we consider that this third case overlaps with that of the absence of a calculation basis provided for in Annex VII, we can conclude that the national laws are conventional on this point.

Among the latter, we might mention the Chadian law, which provides for a dozen hypotheses in which lump-sum remuneration is authorized.⁴⁷ In reality, this is nothing more than a copy of article 36 of the 1957 law (art.
L132-6 CPI) which, alongside four "general" exceptions, adds "special" exceptions.⁴⁸ The initial list in the 1957 law was extended in 1994 to include software. This new exception is also found in certain African laws, such as the Chadian law and the Ivorian law.⁴⁹ This list includes, for example, cheap popular editions. It is not certain that this publishing category is a reality in Chad or Guinea. With such a provision, we end up with a mimicry that African legislators should be wary of. While comparative law can serve as a useful source of inspiration, the provisions from which we can draw must be relevant.

In any case, the list of cases enumerated in the Chadian law corresponds, for the most part, to the synthetic hypotheses provided for in the OAPI text. Such is the case with annotations or prefaces, which can be considered as works of "an incidental character in relation to the object exploited." Other exceptions, such as prayer books or scientific books, do not seem justified *per se*. It seems to us that compliance with the regional text concerns only some of the special exemptions. Thus, in the absence of conformity of national texts, the judge will have to verify that the proportional remuneration agreed in a publishing contract does indeed fall within one of the two hypotheses envisaged by Annex VII of the Bangui Agreement.

Another question concerns the prohibition on the global assignment of future works. While the treaty text lays down the principle of this prohibition without providing for any possibility of derogation, national laws—often inspired by French legislation - allow the publisher to benefit from a pact of preference.⁵⁰

If we consider the preference pact as a derogation from the global prohibition of future works, we should conclude that laws containing this provision are, on this point, contrary to Annex VII. In fact, it was up to the author of the law to provide for any derogations from the rule. However, on reading the text, this does not appear to be the *ratio legis*. On this point, the Bissau-Guinean law, despite providing a framework for the global assignment of future works, can be considered as not conforming to Annex VII. Indeed, according to this text, the *assignment of copyright* in future works can only apply to works produced by the author within a maximum period of 10 years.⁵¹

For other national laws, it is possible to risk a different interpretation by focusing on the notion of pacte de préférence, defined, for example, in the Senegalese law on obligations as a contract allowing a conventional right of pre-emption⁵² and under which the promisor will inform the beneficiary in priority "of his decision to alienate and of the conditions [of the contract]."⁵³ It is therefore not a transfer of economic rights, nor a promise to transfer. This is clear from the definition given in the OHADA preliminary draft on contracts, which defines a preference pact as "an agreement by which the party who remains free to enter into it undertakes, in the event that he decides to do so, to offer priority to the beneficiary of the pact to deal with him."⁵⁴

Following such an interpretation, we would consider that the possibility of concluding framed pacts of preference is not unconventional. Nevertheless, if the pact as a precontract does not pose a problem, the conclusion of the contract covered by the pact would result in a global assignment, even if the text limits the scope of this assignment. The question arises as to whether the texts should not simply provide for the possibility of concluding a preference pact, without adding that it may concern the assignment of a maximum of five works.

Finally, with regard to mentions concerning duration, modes of exploitation or territory of assignment, it should be noted that, generally speaking, national laws do not provide for sanctions, but rather suppletive rules, except concerning duration, in line with regional texts. However, Togolese law stipulates that "the publishing contract *must*⁵⁵ determine the form and mode of expression [...]."⁵⁶ The use of the imperative could suggest that the contract is null and void. Here too, we must focus on the seriousness of the breach of the norm. The judge should only be able to declare the contract null and void if this seems an appropriate sanction. However, the OAPI text seems to encourage the interpretation of the contract in favor of the author. We should also mention the particular case of Mauritanian law, which clearly punishes by nullity any failure to mention the duration of the contract.⁵⁷ This provision does not seem to be in line with the spirit of the OAPI text, and reveals yet another difference between the laws of OAPI member states.

The extent of these many differences can be seen in a horizontal examination of laws.
# 3 | HORIZONTAL REVIEW OF RULES APPLICABLE TO PUBLISHING CONTRACT

The horizontal aspect of this brief survey required us to examine and compare the national texts of OAPI members. This primarily concerned texts relating to literary and artistic property, but also more general laws applicable to publishing contract. However cursory this Enquiry may have been, it nevertheless revealed that the harmonization of publishing contracts in the OAPI area remains incomplete (A). This has led, inevitably, to an exploration of ways of resolving conflicts of norms that may arise in the event of foreign elements (intra-OAPI) in a publishing contract (B).

## 3.1 | Comparative observations on national legislation

This common heritage contributes to a strong similarity between the laws of the OAPI member states (15 out of 17). Indeed, the laws of OAPI member states are largely inspired by French copyright law, particularly, but not exclusively, in the case of French-speaking states.⁵⁸ First of all, it should be noted that some of these provisions conflict with the body of OHADA legislation, of which 16 OAPI member states are members. Secondly, it can be seen from the laws of OAPI member states that some texts are laconic(in other words, succinct, not very explicit), which raises the question of which subsidiary rules to refer to. Finally, a comparison of copyright laws reveals numerous differences.

Provisions that are or may be in conflict with OHADA law include those relating to the assignment of the publisher's business and the continuation of the contract in the event of insolvency proceedings.

The OHADA Uniform Act on Collective Proceedings provides that the opening of receivership or liquidation of assets is not grounds for termination of the contract "notwithstanding⁵⁹ any legal or contractual provision."⁶⁰ This provision is not compatible with certain copyright laws of OAPI member states. For example, Chadian law stipulates that a publisher's receivership does not entail termination of the contract, unless otherwise stipulated.⁶¹ This provision clearly differs from that of the OHADA text, which aims instead to annul any resolutory clause due to insolvency proceedings.

Another example is Cameroonian law, which states that "receivership or judicial liquidation justifies the automatic withdrawal of the work by the author."⁶² This legal provision is contrary to the OHADA Uniform Act on Collective Proceedings.

Practitioners will therefore have to decide which standard will prevail in such a case. The *specialia generalibus derogant rule* will have to be applied by the judge, despite the supranationality of OHADA's normative corpus, at least because copyright does not fall within OHADA's jurisdiction. Consequently, texts relating to literary and artistic property will prevail.

As for laconic (in other words, succinct, not very explicit) rules requiring recourse to subsidiary provisions, the natural reflex is to turn to common law, in this case OHADA law or, depending on the country, the Civil Code or the Code of Obligations. For example, some copyright laws mention the author's privilege or the unseizability of the author's income for the benefit of the author.⁶³ Nevertheless, where copyright law does not expressly provide for these provisions in the author's interest, the general law should be applied. For example, an author who is a creditor of the publisher may, in accordance with AUS-OHADA,⁶⁴ claim a lien.

It may also be asked whether, following the example of ARIPO and other African common law countries, a judge could refer to precedents, or even more detailed laws, from other OAPI countries.⁶⁵ By way of example, a Gabonese judge called upon to apply Gabonese law could, with regard to the publisher's obligation to render accounts, refer to the text of Mali or Niger, for example, to specify the content of this obligation. Indeed, the Gabonese legislator has merely provided for this obligation without any further clarification. The Malian and Nigerian texts specify the information to be included on the statement to be provided by the publisher.⁶⁶
This may not be part of the legal culture of magistrates in the OAPI area, but it would seem to promote the harmonization of literary and artistic property law. Of course, the judge would only be able to do this within the framework of his or her office, and solely for the purpose of supplementing the law, if he or she is unable to find information on which to base a decision. This is certainly a heterodox proposal in civil law countries, but it deserves to be taken into account ... especially if we hope to make the OAPI area a real territory.

In fact, recourse to foreign sources of law is no longer so rare,⁶⁷ even in civil law countries, particularly in constitutional law.⁶⁸ The proposal is therefore less audacious than it may at first appear. As one author has explained, "when the norms [...] to be interpreted are relatively ambiguous, it is intellectually and legally interesting to look at what other courts, in similar situations, may have adopted as their reasoning."⁶⁹ This is particularly true of constitutional law in civil law countries. It should be taken into consideration with regard to publishing contract in the area of legal integration constituted by the OAPI, even if some authors note that recourse to foreign sources does not exclude legal uncertainty.⁷⁰

Apart from cases, such as those mentioned above, where some laws are more explicit than others, there are some notable differences between member states.

Among the main differences between the laws of the member states, we can note that some provide for the possibility of calling into question the publishing contract on the grounds of lesion, whereas this rule does not appear in other laws. Among the texts providing for lesion, a majority specify that lesion is only taken into account if it is at least of the seventh-twelfth order.⁷¹ Others do not specify.⁷² In this case, it is the ordinary law of obligations that should be consulted to determine the threshold. On the other hand, in countries whose copyright law does not provide for rescission for lesion, the author cannot invoke it.

To the list of differences revealed by comparisons between the laws of member states, we can add those concerning provisions for proportional remuneration. On this point, the penalties for failing to stipulate such remuneration do not appear to be identical from one law to another within the OAPI area. And the conventional text is silent on the matter.

Several texts do not provide for any sanctions or suppletive rules. Should such a failure be considered as nullifying the publishing contract? No doubt it could be argued that, in the absence of such precision, or in the event of a lump-sum remuneration being stipulated outside the cases provided for by law, the contract would be valid. However, the author would be entitled to proportional remuneration. What remains to be done is to specify the percentage.

Other laws, on the other hand, lay down suppletive rules to compensate for failure to mention the author's proportional participation in the fruits of exploitation of his work. This is the case, for example, with Cameroonian law, which stipulates that "when a lump-sum remuneration is fixed in violation of the rule [relating to proportional remuneration], the remuneration shall amount to 20% of the exploitation revenues."⁷³

In addition, the majority of texts stipulate the duration of the publishing contract. Almost all of these laws do not provide for penalties in the event of failure to do so. At most, some laws include the provision that, in the case of a fixed-term contract, the rights of the assignee are automatically extinguished at the agreed term.⁷⁴ Certain national texts relating to the law of obligations specify that, subject to the contrary provisions of the law on legal nullities, the judge assesses the grounds for annulment of the contract.⁷⁵ However, as noted above, it does not appear that failure to mention the duration justifies annulment of the contract.

Rather, under ordinary contract law, the assignment would be granted for an indefinite period. This interpretation is in line with Ivorian case law. Indeed, the Abidjan Commercial Court has ruled that the phrase "unlimited duration" cannot be interpreted as meaning that the duration is not specified.⁷⁶ In this case, the term "indefinite duration" would seem to be more appropriate. This would imply, de facto, an assignment for the duration of protection. As this is an open-ended contract, the author should be able to terminate it at any time in accordance with ordinary law, subject to a reasonable period of notice.⁷⁷

The other important provision on which the difference between member states' laws is worth noting is the guaranteed minimum. Under Gabonese law, for example, publishing contract must provide for a guaranteed
minimum remuneration.⁷⁸ This requirement does not exist in all member state laws. The wording of the Nigerian text, for example, leads to the conclusion that in Niger the guaranteed minimum is only a possibility.⁷⁹ Thus, in Gabonese law, the stipulation of a guaranteed minimum is a mandatory provision⁸⁰ whereas it is only indicative in the Nigerian text.

These significant differences,⁸¹ a brief overview of which has just been presented, prompt us to consider the hypotheses of foreignness within the OAPI space.

## 3.2 | Exploring ways of resolving conflicts involving foreign elements

Bartin's predictions about the impossibility of eliminating conflicts of law⁸² are thus a reality for publishing contract, and literary and artistic property in general, in the OAPI area. The supranational text of the OAPI offers no solution to the numerous hypotheses of conflict of laws concerning copyright. It is therefore outside the normative corpus appended to the Bangui Agreement that we must pursue our Enquiry, in the hope of finding some answers to questions of private international law. In the limited context of this research, we shall exclude problems of conflicts of jurisdiction and confine ourselves to conflicts of law.

To date, the answers can be found mainly in national laws.⁸³ However, for almost all OAPI member states, private international law is in the process of being harmonized through work underway at OHADA level. A closer look at this work may provide an initial perspective on the subject.

As far as national law is concerned, it may be noted that in positive law, certain laws of member states designate the law of Country where the contract is concluded. This is the case of the Mauritanian Code of Obligations and Contracts, which states that: contractual obligations are governed by the law of the State of the common domicile of the parties if they reside together, and failing that, by the law of the Country where the contract was concluded, "unless it results from the agreement of the parties or from the circumstances that another law applies."⁸⁴ Thus, for a publishing contract concluded in Côte d'Ivoire between an Ivorian publisher and a Mauritanian author, the Mauritanian rule of private international law will designate Ivorian law, unless "the circumstances" justify the application of another law. To say the least, this notion of "circumstances" resulting in the application of another law is rather vague.

In the same vein, the Gabonese Civil Code states that: "In the absence of a clear expression of will by the contracting parties, contracts are subject to the law of the Country where they are concluded, with the exception of contracts relating to the constitution or transmission of a real right over movable or immovable property [...]."⁸⁵

This raises the question of where to locate the conclusion of a publishing contract, when the act has been concluded between absentees. For example, imagine a contract concluded by e-mail between a publisher in Côte d'Ivoire and an author in Mauritania. What then is Country of conclusion of the contract? The laws of OAPI member states generally refer to the place of acceptance. The Senegalese Code of Civil and Commercial Obligations, for example, states that "between absent persons, the contract is formed as between persons present at the time and place of acceptance." Considering, as in the *Rome I* Regulation, that this place is that of the receipt of the acceptance,⁸⁶ the applicable law will be that of the publisher's country, since he can be considered as the offeror who receives the author's acceptance.⁸⁷

In a previous study, we called for the adoption by OHADA of rules relating to private international law concerning contracts.⁸⁸ A preliminary draft Uniform Act, apparently inspired by the *Rome 1 Regulation*, on the law of obligations was published in 2015⁸⁹ and contains several provisions on private international law. In view of the near-geographical convergence between the OHADA and OAPI areas, a cursory glance at these provisions is not uninteresting to see whether the adoption of this text by the OHADA member states (16 of which are also members of the OAPI) will enable clear rules applicable to the publishing contract to emerge.

A reading of the OHADA preliminary draft reveals that among the provisions relating to private international law, there are articles devoted to contractual obligations and others to extra-contractual obligations. Among the
latter, some are expressly devoted to intellectual property.⁹⁰ Some of those relating to contractual obligations may be applicable to publishing contract.

It should first be noted that the probable future OHADA Uniform Act stipulates that the law applicable to a contract is that chosen by the parties.⁹¹ The principle of the law of autonomy, already applied in the OAPI and OHADA states,⁹² is thus recalled in the OHADA preliminary draft on the law of obligations. The parties may therefore insert an *electio juris* clause in the publishing contract.

The probable future OHADA text also provides for the possibility of severing the contract.⁹³ In such a case, the judge must ensure that the author is protected. Indeed, the autonomy of the will must not allow everything. In the last century, Niboyet was already warning against a "hypertrophy of the role of will,"⁹⁴ which he deplored and strongly criticized. In copyright law, the autonomy of the will must be tightly controlled. This is why, quite rightly, some legal writers consider that the *lex contractus* cannot claim to "redraw to the measure of the parties⁹⁵" the whole of copyright law.

According to the OHADA preliminary draft, the freedom of the parties also includes the right to change the applicable law during the performance of the contract.⁹⁶ The application of such a rule to Publishing contract seems possible only if it does not result in the choice of a less protective rule for the author than the one initially chosen.

Article 576.1 of the OHADA draft specifies the law applicable to several specific contracts. Publishing contracts are not among them. Article 576.2 *in fine* provides that "where the contract is not covered by paragraph 1 [...] the contract shall be governed by the law of the country in which the party who is to provide the characteristic performance has his habitual residence." Characteristic performance is defined as "the fundamental obligation of the contract, the performance of which achieves the effect contractually intended by the parties."⁹⁷ In the case of a publishing contract, this performance (as defined in the preliminary draft) corresponds to the publisher's obligation to exploit the work on a permanent and ongoing basis.

Application of this rule would therefore lead to the law of the publisher's place of habitual residence being designated. This residence corresponds to the principal place of business or the registered office, depending on whether the publisher is a natural person or a legal entity.⁹⁸ Such a solution does not win support insofar as it displaces the law of the author's country, a weaker party to the contract.

Another possibility is to apply the law of the country with which the contract is most closely connected, either because the contract is not included in the list in article 576.1, or because in any case the contract is manifestly more closely connected with a country other than that referred to in article 576.2 (in our case, the country of residence of the party required to provide the characteristic service). Despite the popularity of such a conflict rule, it must be recognized that it can be a source of difficulty.⁹⁹

In view of these drawbacks of the current project, it would seem more appropriate to designate the law of the author's country, as proposed by Professor André Lucas. This could be envisaged, for want of anything better in the OHADA text, and ideally in an OAPI text. The law thus designated will not necessarily be the most favorable to the author. For example, a contract concluded between an author residing in Benin and a publisher residing in Mauritania would, in the absence of a choice by the parties, be governed by the law of Benin, the author's country. However, the law of the publisher's country is more favorable in that it provides for the possibility of rescission for lesion. Nonetheless, this seems to be the clearest and most pertinent response to conflicts of law, insofar as it provides greater predictability for the weaker party. If the OHADA text is adopted as it stands, it is to be hoped that the judge will consider that the country with the closest link to the contract is that of the author.

Article 583 of the OHADA preliminary draft sets out the rules of private international law relating to the law applicable to the form of the contract. On this precise point, the OAPI text can be seen as resolving some of the difficulties. In the case of foreign elements, the question of the form of the publishing contract will in any case have to be resolved by direct reference to Annex VII of the Bangui Agreement, which requires a written document on pain of nullity. The national law designated by this conflict rule should be consulted, for example, regarding any mandatory terms to be included in the publishing contract.
To conclude this overview of the probable future OHADA Uniform Act on the Law of Obligations, we should also mention its article 584, which states that the law designated by the conflict rule governs its interpretation, the performance of the obligations it generates and, within the limits of the powers attributed by the procedural law of the designated country, the consequences of nonperformance of the contract. Here too, it should be noted that the law designated under future OHADA law cannot be applied without disregarding certain provisions of Annex VII of the Bangui Agreement.

For example, with regard to the interpretation of a publishing contract, if Gabonese law is applied and the publishing contract does not specify the territory of exploitation¹⁰⁰ or the modes of exploitation, the judge will have to interpret the contract by referring to the OAPI text,¹⁰¹ which provides rules of interpretation on this point. Indeed, despite the designation of a member state's law by the conflict rule, it must be borne in mind that the text, Annex VII of the Bangui Agreement, constitutes the common base, and that national laws are only complementary.

This brief evocation of ways of resolving conflicts of law does not exhaust the subject. However, it does at least shed light on some of the questions that arise, or may arise in practice, from the articulation of texts. This aspect of the survey, like those mentioned above, would benefit from further analysis, given the vastness of the subject. This was not possible within the restricted framework of this study. Such a challenge was beyond the scope of this modest survey. This is why we can conclude, provisionally, by paraphrasing Jean de La Fontaine's *Epilogue*¹⁰²: *if the curious reader wanted more, If they would have liked more from my Enquiry, This work already paves the road for more, the final touch will be a matter of continuation*.¹⁰³

## DATA AVAILABILITY STATEMENT

Data sharing not applicable to this article as no datasets were generated or analysed during the current study.

## ORCID

Yvon Laurier Ngombé http://orcid.org/0000-0002-1532-4628

## ENDNOTES

<footnote n="1">¹ J. Carbonnier, *Flexible droit pour une sociologie du droit sans rigueur*, 10ème edition, LGDJ, 2001, pp. 255 et seq. and spec. 313 et seq. concerning contract.</footnote>

<footnote n="2">² "This is the prototype of the exploitation contract, which includes reciprocal obligations, for the author to put his co-contractor in a position to print and publish, and for the publisher to actually carry out the operations that will ensure the distribution of the work" (H. Desbois, *Le Droit d'auteur en France*, 3ème éd. Dalloz 1978, n°492, p. 607).</footnote>

<footnote n="3">³ R. Fernay, "La cession et le contrat d'édition", 1958 (2) RIDA 2257.</footnote>

<footnote n="4">⁴ B. Cazenave, "The African Intellectual Property Organisation (OAPI): From Libreville to Bangui," 1989 *Industrial Property: [WIPO]* 291.</footnote>

<footnote n="5">⁵ The change of name took account of Madagascar's withdrawal and the extension of the Organization's material scope (initially limited to industrial property) to copyright.</footnote>

<footnote n="6">⁶ For an overview of the 1977 text, see in particular C.-J. Kingué, *La protection du droit d'auteur dans les Etats membres de l'organisation africaine de la propriété intellectuelle, Thesis Paris II*, 1985.</footnote>

<footnote n="7">⁷ For a presentation of the main changes in the 2015 version of the Bangui Agreement, L.Y. Ngombé, "News from Africa", 2016 (4) RIDA 164.</footnote>

<footnote n="8">⁸ These are the following 17 countries: Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Côte d'Ivoire, Djibouti, Equatorial Guinea, Gabon, Guinea (Conakry), Guinea-Bissau, Mali, Niger, Mauritania, Senegal and Togo.</footnote>

<footnote n="9">⁹ Preamble to the Bangui Agreement.</footnote>

<footnote n="10">¹⁰ For an overview, see D. Bohoussou, "Les contrats d'acquisition des droits de reproduction et les contrats de représentation", in *Etudes offertes au professeur Joseph Issa-Sayegh*, AIDD, 2006, p. 74.</footnote>

<footnote n="11">¹¹ Laws that do not necessarily contain provisions specific to publishing contracts alone. In Gabonese law, for example, the rules governing publishing contracts are no more than the general provisions set out in chapter three on "Transfer of copyright."</footnote>
<footnote n="12">12 N. Balat, *Essai sur le droit commun*, LGDJ, 2016, n°812 et seq.</footnote>

<footnote n="13">13 Between supranational and national standards on the one hand, and between national standards on the other.</footnote>

<footnote n="14">14 F. Siirinainen, "Le droit de la propriété littéraire et artistique dans l'accord de Bangui après la révision de Bamako", *RFPI* n°6, June 2018, p.33.- L.Y. Ngombé, "Du "régime commun" au "cadre normatif minimal". Retour sur la supranationalité du texte de l'OAPI sur la propriété littéraire et artistique" 2018 RLDI 46.</footnote>

<footnote n="15">15 ABR 1999, Annex VII, art. 39.3.</footnote>

<footnote n="16">16 ABR 1999, Annex VII, art. 39.1.</footnote>

<footnote n="17">17 Some national laws have chosen a wording which seems clearer to us. This is the case of Cameroonian law, Article 42 of which states that "the publishing contract is the agreement by which the copyright owner authorizes, under specific conditions, a person called the publisher, to produce a defined number of copies of the work, with the responsibility of ensuring its publication."</footnote>

<footnote n="18">18 ABR 1999, Annex VII, art. 42</footnote>

<footnote n="19">19 See, for example, the Malian Code of Obligations: "Relative nullity results from non-compliance with rules designed to ensure the protection of a private interest, such as provisions concerning defects in consent, protective incapacity and lesion. Only the person whom the law protects can invoke relative nullity." See for an illustration in French law, Pour une illustration en droit français, Cass. 3e civ., 21 sept. 2011, no 10-21900: 2011 JCP G 1276, note J. Ghestin; 2011 *Dalloz* 2711, note D. Mazeaud; 2011 *RDI* 2011 623, note M. Poumarède; Constr. urb., nov. 2011, comm. no 160, obs. C. Sizaire; 2011 *Contrats, conc., consom*, comm. no 252, obs. L. Leveneur 2018 (1) *Revue des contrats* 130, obs. J.-B. Seube.</footnote>

<footnote n="20">20 See in particular C. Renard and E. Vieujean, "Nullité, inexistence et annulabilité en Droit civil Belge" (1962) AFL 243, spec. pp. 264-265.</footnote>

<footnote n="21">21 In this case, we would need to consider the validity of the written word for illiterate or illiterate authors. See below.</footnote>

<footnote n="22">22 ABR 2015, Annex VII, art. 41.</footnote>

<footnote n="23">23 *Les résistances du droit traditionnel au droit moderne des obligations*, Actes du colloque de Dakar 5-9 juillet 1977, *Revue sénégalaise de droit* 1977.</footnote>

<footnote n="24">24 Y.L. Ngombé, *Droit(s) africain(s) de la propriété littéraire et artistique*, Presses universitaires d'Aix-Marseille, 2022, n°239.</footnote>

<footnote n="25">25 It is important to ensure that the literate witness is not in a conflict of interest situation.</footnote>

<footnote n="26">26 C. Grimaldi, 'Projet de texte uniforme portant droit général des obligations dans l'espace OHADA' (2016) *Dalloz* 648. See also D. Sossa, 'Pour une harmonisation du droit des contrats dans les pays membres de l'OHADA' (2016) JCP G 2016 prat. 101. This draft was written by Professors Issa-Sayegh, Pougoue and Sawadogo.</footnote>

<footnote n="27">27 OHADA preliminary draft, art.538, al. 1.</footnote>

<footnote n="28">28 OHADA preliminary draft, art. 538, para. 2.</footnote>

<footnote n="29">29 Senegal, Code of Civil and Commercial Obligations, art. 20.</footnote>

<footnote n="30">30 ABR 1999, Annex VII, art. 37.1.</footnote>

<footnote n="31">31 ABR 2015, Annex VII, art. 43.1.</footnote>

<footnote n="32">32 ABR 1999, Annex VII, art. 37.2-ABR 2015, Annex VII, art. 43.2.</footnote>

<footnote n="33">33 A. Lucas, A. Lucas-Schloetter, C. Bernault, *Traité de la propriété littéraire et artistique* (5ème edition, LexisNexis 2017), n°744.</footnote>

<footnote n="34">34 ABR 1999, Annex VII, art. 37.3-ABR 2005, Annex VII, art. 43.3.</footnote>

<footnote n="35">35 ABR 2015, Annex VII, 43.4.</footnote>

<footnote n="36">36 If the parties so wish, this rule can be set aside to limit the transfer to the author's country. However, this must correspond to the common will of the parties.</footnote>

<footnote n="37">37 See on this point, Planiol M. and Ripert G., *Traité pratique de droit civil français. Les obligations*, t. VI (2ème edition, by P. Esemein, LGDJ 1952), n° 295.</footnote>

<footnote n="38">38 ABR 2015, Annex VII, art. 41.1.</footnote>

<footnote n="39">39 Directive (EU) 2019/790 of the European Parliament and of the Council of April 17, 2019 on copyright and related rights in the digital single market, Article 18. Regarding these provisions, see B. Montels, in particular. Montels, "L'incidence du droit européen des contrats d'auteur sur son modèle français," Com. com. électr. 2019, n°10, Dossier n°6.</footnote>
<footnote n="40">40 See in particular, A. Dadoun "Le spectre de l'adage "pas de nullité sans texte" en droit des contrats" (2018) (1) RC 139.</footnote>

<footnote n="41">41 COPYRIGHT LAW—Gabon, art. 45; COPYRIGHT LAW—Niger, art. 43; COPYRIGHT LAW—Benin, art. 37 and 38; COPYRIGHT LAW—Côte d'Ivoire, art. 56; COPYRIGHT LAW—Mali, art. 65.</footnote>

<footnote n="42">42 COPYRIGHT LAW—Guinea Bissau, art. 77.1</footnote>

<footnote n="43">43 COPYRIGHT LAW—Guinea, art.47</footnote>

<footnote n="44">44 COPYRIGHT LAW—Guinea Bissau, art. 78.1. However, article 78.2 of the same law provide that in the absence of a remuneration clause, the author is entitled to one-third of the proceeds from each copy.</footnote>

<footnote n="45">45 ABR 2015, Annex VII, art. 41.2.</footnote>

<footnote n="46">46 COPYRIGHT LAW—Benin, art. 26; COPYRIGHT LAW—Senegal, art. 65.3; COPYRIGHT LAW—Togo, art. 43.</footnote>

<footnote n="47">47 COPYRIGHT LAW—Chad, art. 57.</footnote>

<footnote n="48">48 For a critical look and a refined presentation of these derogations, A. Lucas, A. Lucas-Schloetter and C. Bernault, *Traité de la propriété littéraire et artistique* (5ème edition, LexisNexis 2017), n°892.</footnote>

<footnote n="49">49 COPYRIGHT LAW—Chad, art. 49, al. 2, 5° and COPYRIGHT LAW—Côte d'Ivoire, art. 59.</footnote>

<footnote n="50">50 COPYRIGHT LAW—Ivory Coast, art. 65; COPYRIGHT LAW—Guinea, art. 48.</footnote>

<footnote n="51">51 COPYRIGHT LAW—Guinea Bissau, art. 46.1. The same text goes on to state (art. 46.2) that any contract providing for the assignment of copyright in any future work produced by the author will be null and void without time limit. This means that the assignment of future works not limited in time, as provided for by law, will be null and void. This nullity may be invoked without time limit.</footnote>

<footnote n="52">52 Senegalese Code of Civil and Commercial Obligations, art. 319.</footnote>

<footnote n="53">53 Senegalese Code of Civil and Commercial Obligations, art. 320.</footnote>

<footnote n="54">54 OHADA preliminary draft, art. 55.</footnote>

<footnote n="55">55 Our italics.</footnote>

<footnote n="56">56 COPYRIGHT LAW—Togo, art. 50 in fine.</footnote>

<footnote n="57">57 COPYRIGHT LAW—Mauritania, art. 63, On this text, L.Y. Ngombé, "News from Africa", 2015 (1) RIDA 1. 236 et seq.</footnote>

<footnote n="58">58 L.Y. Ngombé, "Le droit d'auteur français hors de France", 2009 *Com. comm. électr.*, Study 9.</footnote>

<footnote n="59">59 Our Italics.</footnote>

<footnote n="60">60 AUPC (2015)—article 107.</footnote>

<footnote n="61">61 COPYRIGHT LAW—Chad, article 66.</footnote>

<footnote n="62">62 COPYRIGHT LAW—Cameroon, article 14.3.</footnote>

<footnote n="63">63 See in particular, concerning the author's privilege, COPYRIGHT LAW—Burkina Faso, art. 46, COPYRIGHT LAW—Cameroon, art.15.3 and 54, COPYRIGHT LAW—Tchad, art. 52.</footnote>

<footnote n="64">64 AUS (2010), art. 180. 4°, which explicitly provides for a privilege for authors.</footnote>

<footnote n="65">65 Concerning the use of foreign sources in African common law states, see for example *Justin Mbita Silumbwe v/Barclays Bank Zambia Ltd* (Appeal No. 90/2011, Supreme Court of Zambia (Judgment No. 40 of 2017), July 7, 2017: 2019 (1) RIDA 1122, obs. L.Y. Ngombé (recourse to foreign precedents, including American). See also *Southern Sun Africa v Sun Square Hotel (Pty) Ltd*, High Court of Namibia, Main division Windhoek, April 23, 2018 2019 (1) RIDA 128, obs. Ngombé (recourse to South African jurisprudence). See also, *Financial Intelligence Unit v Cyber Space Ltd*, Court of Appeal, Seychelles, May 3, 2013: *Seychelles Law Reports*, 2013, p. 97; 2015 (1) RIDA 1/2015 297, obs. L.Y. Ngombé (recourse to the Digital Millennium Act, the e-commerce directive, CJEU and Canadian Supreme Court case law).</footnote>

<footnote n="66">66 COPYRIGHT LAW—Mali, art. 74, COPYRIGHT LAW—Niger, art. 52—See also COPYRIGHT LAW—Côte d'Ivoire, art. 66 and COPYRIGHT LAW—Cameroon, art. 44.</footnote>

<footnote n="67">67 On the practical value of comparative law, O. Pfersmann "Comparative law as interpretation and legal theory". *RIDC. Vol. 53 N°2*, April–June 2001, p. 275. This author points out that: "every judge or legislator consults foreign data before venturing into the construction of a new regulation, in the solution of a novel case."</footnote>

<footnote n="68">68 D. Maus, "Le Recours Aux Précédents éTrangers Et Le Dialogue Des Juges Constitutionnels" (2009) (4) 675.</footnote>

<footnote n="69">69 D. Maus, *art. cited above*, p. 683.</footnote>

<footnote n="70">70 For Canada in particular, see C. Lemieux, "Jurisprudence et Sécurité Juridique: Une Perspective Civiliste" (1998–1999) 29 RDUS 223, spec. pp. 226–227.</footnote>
<footnote n="71">71 See, for example, COPYRIGHT LAW Côte d'Ivoire, art. 61.</footnote>

<footnote n="72">72 COPYRIGHT LAW Mauritania, art. 65.</footnote>

<footnote n="73">73 COPYRIGHT LAW—Cameroon, art. 24.3.</footnote>

<footnote n="74">74 COPYRIGHT LAW—Benin, art. 42; COPYRIGHT LAW Senegal, art. 74.4.</footnote>

<footnote n="75">75 See for example, Code malien des Obligations, art.66.—See also Code civil guinéen: Article 1079.</footnote>

<footnote n="76">76 Tribunal de commerce d'Abidjan, December 31, 2015, RG n°2777/2015, *Bouaffo c/MTN Côte d'Ivoire, unpublished*. In this decision, one of the parties argued that, under Ivorian law, the absence of mention was not sanctioned by nullity. Unfortunately, the court did not respond. Another interpretation cannot be ruled out, as nullities are virtual: the silence of the OAPI text and of certain national texts leaves the judge free to draw the consequences of this failure, whereas for other mentions (failure to indicate the territory, e.g.), it is the normative text that excludes nullity.</footnote>

<footnote n="77">77 This is not contrary to the copyright laws of the OAPI region, which clearly state that publishing contracts may be terminated in accordance with ordinary law, and then in accordance with the rules specific to publishing contracts. See, for example, COPYRIGHT LAW- Côte d'Ivoire, art.70 and COPYRIGHT LAW-Tchad, art. 69.</footnote>

<footnote n="78">78 COPYRIGHT LAW—Gabon, art. 47.</footnote>

<footnote n="79">79 COPYRIGHT LAW—Niger, art. 50, al.2.</footnote>

<footnote n="80">80 Which seems to be mitigated by article 54 of the same law, which stipulates that: "must mention the minimum number of copies constituting the first print run, unless it provides for a minimum of royalties guaranteed by the publisher". This means that, if we wish to find consistency between article 47 and article 54, a publishing contract will comply with Gabonese law if, in the absence of a guaranteed minimum, it specifies the number of copies in the first print run. In the absence of either, the question of validity arises.</footnote>

<footnote n="81">81 But that shouldn't obscure the many similarities between them.</footnote>

<footnote n="82">82 E. Martin, "De l'impossibilité d'arriver à la suppression définitive des conflits de lois", 1897 *JDI* 225 et seq., p. 466 et seq. and p. 720 et seq.</footnote>

<footnote n="83">83 P. Meyer, 'Réflexions Relatives Aux Sources Internes en Droit International Privé Burkinabé' (1987) RBD 435.</footnote>

<footnote n="84">84 Mauritania, Code des Obligations et des Contrats (Ordonnance n°89-126 du 14 septembre 1989) JO du 25 octobre 1989, art. 10.</footnote>

<footnote n="85">85 Gabonese Civil Code, art. 55.</footnote>

<footnote n="86">86 See also, *OHADA Preliminary Draft Uniform Text on General Law of Obligations* (hereinafter *OHADA Preliminary Draft*), art. 52.</footnote>

<footnote n="87">87 This location changes, if we consider that the place of acceptance is the place from which it is issued.</footnote>

<footnote n="88">88 L.Y. Ngombé, 'Mise en œUVre Du Droit D'auteur Dans L'espace OAPI et Questions de droit International Privé' (2006) (2) JDI Clunet, var. 9, n°27 et 28.</footnote>

<footnote n="89">89 C. Grimaldi, 'Projet de texte uniforme portant droit général des obligations dans l'espace OHADA' (2016) Dalloz 648.</footnote>

<footnote n="90">90 The Preliminary Draft mentions that rules relating to intellectual property are provided for, insofar as OAPI's normative corpus is silent on this point. This is an example of OHADA's tendency to place itself in the same field as OAPI. On this question, see in particular R. Kiminou, 'L'OHADA et l'intégration des droits de propriété intellectuelle de l'OAPI: de l'art d'intégrer des droits intégrés' (2016) (3) RRJ 20161363.</footnote>

<footnote n="91">91 OHADA preliminary draft, art. 575.1.</footnote>

<footnote n="92">92 P. Meyer, *Droit international privé burkinabé et comparé*, Namur, ed. André Boland, 1993, n°323 et seq.</footnote>

<footnote n="93">93 OHADA Preliminary Draft, Art. 575.2</footnote>

<footnote n="94">94 J. A. Pillet and J.-P. Niboyet, *Manuel de droit international privé* (2ème edition by J.-P. Niboyet, Librairie du Recueil Sirey 1928), n°681</footnote>

<footnote n="95">95 A. Lucas, 'La loi applicable aux contrats d'exploitation des droits d'auteur et des droits voisins' *Mélanges Victor Nabhan* (2004) CPI, *Hors-série*, 289 et seq.</footnote>

<footnote n="96">96 Ibid. See also Gabonese Civil Code, art. 55, para. 3.</footnote>

<footnote n="97">97 Draft OHADA Law of Obligations, art. 576.2.</footnote>

<footnote n="98">98 OHADA project, art. 574.1.</footnote>
**How to cite this article:** Ngombé, Y. L. (2024). 'Summary Survey on Publishing Contract in the OAPI Space'.

*The Journal of World Intellectual Property*, 27, 242-256. https://doi.org/10.1111/jwip.12298

<footnote n="99">⁹⁹ A. Lucas, A. Lucas-Schloetter, C. Bernault, *Traité de la propriété littéraire et artistique* (5ème edition, LexisNexis 2017), n°1588.</footnote>

<footnote n="100">¹⁰⁰ Hypothesis not envisaged by Gabonese law.</footnote>

<footnote n="101">¹⁰¹ ABR 2015, Annex VII, art. 43.3 and 43.4.</footnote>

<footnote n="102">¹⁰² J. de La Fontaine, *Epilogue, Fables*, Livre Onzième.</footnote>

<footnote n="103">¹⁰³ Verse from the Fable: "If those I introduce find me not very faithful; if my work is not a good enough model; I have at least opened the way; others will be able to put the finishing touches to it."</footnote>