BREAKING: CJEU follows AG and holds French law on out-of-print books contrary to EU law

Is a national law that provides ab initio that a collecting society - rather than the author of a work - has the right to authorise the reproduction and communication to the public of such work compatible with EU law?

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.

All this said, what was Soulier about?

Background

In 2012 France adopted a piece of legislation that 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 Ministry of 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 [a somewhat comparable recent case in which the rightholders/authors dichotomy has been addressed - although in the context of private copying - is Reprobel, on which see here].

The applicants in the national proceedings lodged an application with the Conseil d’État, seeking 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?’

Out-of-print or just out-of-energy?

The AG Opinion

In his Opinion [here] on 7 July 2016, Advocate General (AG) Wathelet [yes, the same AG of GS Media] advised the CJEU to rule in the sense of the incompatibility of the French law with EU law.

Having clarified what provisions need to be considered [not exceptions and limitations, said the AG] 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 held [paras 38-39] that: 

"Article 2(a) and Article 3(1) of Directive 2001/29 [yes, the InfoSoc Directive] 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 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 the InfoSoc Directive do not preclude. 

Today's decision

In today's decision, the CJEU held that the InfoSoc Directive precludes national legislation authorising the digital reproduction of out-of-print books. According to the Court, national legislation must guarantee the protection accorded to authors by the directive and ensure, in particular, that they are actually informed of the envisaged digital exploitation of their work, while being able to put an end to it without formalities.

The decision is not yet available on the Curia website, but according to the press release:

“In today’s judgment, the Court of Justice notes that, subject to the exceptions and limitations expressly provided for in the directive, authors have the exclusive right to authorise or prohibit the reproduction and communication to the public of their works.

However, it holds that the prior consent of an author to the use of one of his works can, under certain conditions, be expressed implicitly. For the existence of such consent to be accepted, the Court considers, in particular, that every author must be informed of the future use of his work by a third party and of the means at his disposal to prevent it if he so wishes.

The French legislation, as it currently stands, provides that the right to authorise the digital exploitation of out-of-print books is transferred to the SOFIA [an approved collecting society] when the authors do not oppose it within a period of six months after the registration of their books in a database established to that effect.

The Court states that the Conseil d’État has not shown that this legislation included a mechanism ensuring authors are actually and individually informed. It is not therefore inconceivable, according to the Court, that some of the authors concerned are not aware of the envisaged use of their works and, consequently, are not able to adopt a position on it. In those circumstances, a mere lack of opposition on their part cannot be regarded as the expression of their implicit consent to the use of their works, especially since it cannot reasonably be presumed that, without opposition on their part, every author of ‘forgotten’ books is in favour of the ‘resurrection’ of those works, in view of their commercial use in a digital format.

The Court adds that the pursuit of the objective enabling the digital exploitation of out-of-print books in the cultural interest of consumers and of society, while compatible with the directive as such, cannot justify a derogation not provided for by the EU legislature from the protection that authors are ensured by the directive. Furthermore, the Court states that the French legislation enables authors to put an end to the commercial exploitation of their works in digital format either by mutual agreement with the publishers of those works in printed format or alone, on condition that they provide evidence that they alone hold the rights in their works. The Court declares, in this respect, that the right of the author to put an end to the future exploitation of his work in a digital format must be capable of being exercised without having to depend on the concurrent agreement of persons other than those to whom the author had given prior authorisation to proceed with such a digital exploitation and, thus, on the agreement of the publisher holding only the rights of exploitation of that work in a printed format. Moreover, the author of a work must be able to put an end to the exercise of rights of exploitation of that work in digital format without having to submit beforehand to any additional formalities.”

A more detailed analysis will be provided once the decision has been made available: stay tuned!