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French law on out-of-print books censured by the EU Court of Justice

by Tougane Loumeau (GIDE LOYRETTE NOUEL – France)

Marc Soulier and Sara Doke v. Premier Ministre and Ministre de la culture et de la communication, CJEU, November 16, 2016, C-301/15, ECLI: EU:C:2016:878

The Court of Justice of the European Union has recently ruled that the European copyright directive precludes national legislation such as the French decree on out-of-print 20th century books, providing the automatic transfer of the right to authorise the digital reproduction of out-of-print books to an approved collecting society when the author does not oppose it within a period of 6 months after the registration of their books in a database established to that effect.

French legislation defines an out-of-print book as “a book published in France before  January 1, 2001 which is no longer commercially distributed by a publisher and is not currently published in print or in a digital format“.

Per the Decree at stake, an approved collecting society named the SOFIA, was given the responsibility for authorising the reproduction and communication, in digital form, of out-of-print books, it being understood that the authors of those books or their successors in title may oppose or put an end to the exercise of those rights under certain conditions.

The French Supreme Administrative Court (Conseil d’Etat) had been seized by two writers who claimed that the Decree was not compatible with the European copyright Directive. The Conseil d’Etat referred the question to the European Court of Justice.

The ECJ stressed that the principle is that authors have the exclusive right to authorise or prohibit the reproduction and communication to the public of their works, subject to the exceptions and limitations expressly provided for in the directive. It held that the prior consent of an author to the use of one of his works can, under certain conditions, be expressed implicitly. However, for that consent to be assumed, 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, such as it was, did not fulfil that requirement since it did not include a mechanism ensuring that authors are actually and individually informed of the envisaged use of their works. The authors are therefore 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 that use.

It should be noted that on 28 February 2014, the French Constitutional Court had issued a judgment by which it had ruled that the French legislation did not violate the French Constitution, especially the property right.