This - in a nutshell - is the question at the centre of what is probably [of course, after GS Media, on which see the string of IPKat posts here] the most important copyright case of the year at the Court of Justice of the European Union (CJEU): Soulier and Doke, C-301/15.
Why this case matters
The reason is soon explained: this reference for a preliminary ruling from the French Conseil d’État is not just a case concerning the compatibility with EU law of the French loi (Law No 2012-287 of 1 March 2012) to allow and regulate the digital exploitation of out-of-print 20th century books, but - more generally - a case that questions the actual freedom of Member States to legislate independently on copyright issues.
As this blog reported, in fact, the outcome of this decision has the potential to have far-reaching implications.
An immediate example is another piece of French legislation, ie Loi No 2016-925 on freedom of creation, architecture and cultural heritage [this - among other things - has introduced new provisions, Articles L 136-1 to 136-4, into the Code de la propriété intellectuelle (CPI) to regulate the exercise of the exclusive rights of reproduction and representation vis-à-vis automated image referencing services].
A further case might be - as suggested by Sylvie Nérisson on the Kluwer Copyright Blog - a number of statutory collective management schemes, including extended collective licensing.
Finally, it might have a broader, policy relevance, in that the recently proposed Directive on copyright in the Digital Single Market [here] contains specific provisions on out-of-commerce works.
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 Ministry of Culture.
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:
|Out-of-print or just out-of-energy?|