AG Wathelet advises CJEU to hold French law on out-of-print books incompatible with EU law

AG Melchior Wathelet

Amidst all the madness hectic legislative activity surrounding orphan works and out-of-print books that took place in Europe in the first half of 2010s (also as a reflection and echo of the unfolding Google Books saga in the US), in 2012 France adopted a loi (Law No 2012-287 of 1 March 2012) to allow and regulate the digital exploitation of out-of-print 20th century books.

This piece of legislation amended the French Code de la propriété intellectuelle by adding a new chapter (Chapter IV - Articles L 134-1 to L 134-9, subsequently amended) to Title III of Book I therein. 

Among other things, this French law gives approved collecting societies the right to authorise the reproduction and the representation in digital form of out-of-print books, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice subject to certain conditions. 

More specifically, the relevant implementing decree has established a legal framework intended to encourage the digital exploitation of works reproduced in books published in France before 1 January 2001 which are no longer commercially distributed by a publisher and are not published in print or digital format. In that case the right to authorise the reproduction or performance of those books in digital format is exercised, six months after their registration in a publicly accessible database for which the National Library of France is responsible, by collecting societies approved to do so by the Minister responsible for culture.

But is an arrangement of this kind compatible with EU law, notably the InfoSoc Directive? Among other things, Article 2(a) and 3(1) of that directive, in fact, provide authors - not collecting societies - with the right to authorise the reproduction and communication to the public of their works.

This is the question at the core of the reference for a preliminary ruling lodged by the French Conseil d’État and currently pending before the Court of Justice of the European Union (CJEU). This is Marc Soulier C-301/15.

Yesterday Advocate General Wathelet issued his Opinion in this case, advising the Court [not really surprisingly, also considering recent CJEU decisions like Reprobel, noted here] to rule in the sense of the incompatibility of French law with EU law.

Background

The applicants in the national proceedings have lodged an application with the Conseil d’État. They seek the annulment for misuse of powers of Law No 2012-287 implementing decree, on grounds that the Law on out-of-print books is not compatible with the limitations and exceptions to the right to authorise the reproduction of a copyright work which are exhaustively set out in the InfoSoc Directive.

Further to a reference to the Conseil constitutionnel in 2013 regarding the compatibility of Law No 2012-287 with the French Constitution [in 2014 the Conseil constitutionnel responded in the sense of its compatibility], the Conseil d’État decided to stay the proceedings and refer the following question to the CJEU:

Do [Articles 2 and 5] of [the InfoSoc Directive] … preclude legislation, such as that [established in Articles L. 134-1 to L. 134-9 of the Intellectual Property Code], that gives approved collecting societies the right to authorise the reproduction and the representation in digital form of “out-of-print books”, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that it lays down?’

The AG Opinion

First: what needs to be considered?

The AG noted at the outset that, although the question referred by the Conseil d’État relates to Article 2 of the InfoSoc Directive, the digitisation and making available of a book also calls into consideration Article 3(1) [right of communication to the public]. This is because [para 26] the digital exploitation of copyright books constitutes ‘reproduction’ and ‘communication to the public’ of a work, which require individual and separate authorisation by the author, unless those acts are covered by an exception or a limitation provided for in Article 5 of that directive.

According to the AG, to answer the question posed by the French court, consideration of Article 5 of the InfoSoc Directive is unnecessary. This is because [para 28] legislation such as that at issue in the case in the main proceedings is not included in the detailed and exhaustive list of exceptions and limitations in Article 5. 

The scope of exclusive rights

Having clarified what provisions need to be considered and recalled the rationale [high protection of authors] and interpretation of InfoSoc provisions ['autonomous' and 'uniform' where no express reference is made to Member States' laws], the AG turned to the consideration of the scope of relevant exclusive rights.

He held [paras 38-39] that: 

"Article 2(a) and Article 3(1) of Directive 2001/29 require the prior express consent of the author for any reproduction or communication to the public of his work, including in digital format. That consent constitutes an essential prerogative of authors.

In the absence of any derogating EU legislation, the author’s express and prior consent for the reproduction or communication to the public of his work cannot be eliminated, assumed or limited by substituting it with tacit consent or a presumed transfer which the author must oppose within a fixed time limit and in accordance with conditions laid down by national law. It follows that national legislation like the decree at issue, which replaces the author’s express and prior consent with tacit consent or a presumption of consent, deprives the author of an essential element of his intellectual property rights."

The AG added that none of the following characteristics of the French law alter such finding, ie: the possibility of opposition and withdrawal; the right to remuneration, and the absence of commercial distribution of the work to the public. 

The scope of EU preemption

The AG also rejected the argument that the legislation at issue would not affect the protection of copyright because it simply constitutes an arrangement for managing certain rights which Article 2(a) and Article 3(1) of Directive 2001/29 do not preclude. According to the AG [paras 55-57], 

"such a view of copyright runs counter to Article (2)(a) and Article 3(1) of [the InfoSoc] Directive. In providing for the author’s exclusive right to authorise or prohibit the reproduction and communication to the public of his works, those provisions also concern the way in which those rights are exercised by the author.

While it is true that [the InfoSoc] Directive 2001/29 neither harmonises nor prejudices the arrangements concerning the management of copyright which exist in Member States, the EU legislature, in providing that authors enjoy, in principle, exclusive rights to authorise or prohibit the reproduction of their work and its communication to the public, exercised its competence in the field of intellectual property.

In those circumstances, the Member States can no longer adopt management arrangements which compromise EU legislation, even if this is done with the intention of furthering a public interest objective. Before management of the rights of reproduction and communication to the public can be taken into consideration, the holder of those exclusive rights must have authorised a management organisation to manage his rights."

Comment

Gentle reminder

This is yet another thoughtful Opinion by AG Wathelet, which in my view is entirely correct. Let's see if the CJEU agrees.

Two further points worth raising are the following.

First, it seems to me that lately AGs have taken protection of 'authors' [rather than - more generically - rightholders] particularly at heart. Besides yesterday's Opinion of AG Wathelet, another recent example that comes to mind is the Opinion of AG Szpunar in Vereniging Openbare Bibliotheken v Stichting Leenrecht, C-174/15 [the 'e-lending case', currently in progress and noted here], in which he clearly stated [para 34] that "the principal objective of copyright is to safeguard the interests of authors".

Secondly, should the CJEU follow the Opinion of AG Wathelet [which seems natural, considering recent jurisprudence] the French law on out-of-print books may not be the only piece of legislation incompatible with EU law. 

Staying in France, only yesterday Loi No 2016-925 on la liberté de la création, l'architecture et patrimoine (freedom of creation, architecture and cultural heritage) was published in the Journal officiel de la République française [this blog reported on this legislative initiative when it was at the draft stage]. 

Among other things, Article 30 of Loi No 2016-925 introduces new provisions into the Code de la propriété intellectuelle to regulate the publication of a plastic, graphic or photographic work by an online communication service. In particular, new Article 136-2(1) states the following:

"La publication d'une œuvre d'art plastique, graphique ou photographique à partir d'un service de communication au public en ligne emporte la mise en gestion, au profit d'une ou plusieurs sociétés régies par le titre II du livre III de la présente partie et agréées à cet effet par le ministre chargé de la culture, du droit de reproduire et de représenter cette œuvre dans le cadre de services automatisés de référencement d'images. A défaut de désignation par l'auteur ou par son ayant droit à la date de publication de l'œuvre, une des sociétés agréées est réputée gestionnaire de ce droit." 

This means that the publication of a plastic artwork, graphic or photographic work by an online communication service is subject to the consent, not of authors, but rather ... one or more collecting societies appointed to this end by the French Ministry of Culture. 

I look forward to reading further commentaries on this new piece of French legislation but, in light of AG Wathelet's analysis and previous CJEU case law, it does not seem that Loi No 2016-925 is entirely compatible with EU law. 

But what do readers (especially French) think?