Members cannot permit the digital reproduction of out-of-print books in breach of the exclusive rights endowed to authors by copyright law, the Court of Justice of the European Union (CJEU) recently ruled.
The EU’s Copyright Directive makes provision for certain key rights for authors insofar as their works are concerned. Such authors enjoy exclusive reproduction rights over their work, an exclusive right to communicate their work to the public and to distribute it. It is therefore up to the author of an original work to authorise or prohibit its reproduction by any means and in any form. The same directive sets out an exhaustive list of exceptions and limitations to such rights in order to facilitate the use of original works in specific circumstances.
The facts of this particular case which came before the CJEU were briefly as follows. In France, books published before January 1, 2001, and which are no longer commercially distributed or published in print or in a digital format are considered as ‘out-of-print books’. In accordance with French law, an approved collecting society, the SOFIA, is responsible for authorising the reproduction and communication, in digital form, of out-of-print books. The authors of such books or their successors in title may oppose or put an end to the exercise of such rights within a period of six months after the registration of their books in a specific database set up for this purpose. Authors are not therefore actually and individually informed. Two French authors alleged that French law was in this way providing for an exception or limitation to authors’ exclusive rights which was not provided for in the EU’s Copyright Directive. The national judiciary body seized of the case filed a preliminary reference before the CJEU requesting guidance on the matter.
The CJEU observed that, subject to the exceptions and limitations expressly provided for in EU law, authors have the exclusive right to authorise or prohibit the reproduction and communication to the public of their works. The court acknowledged that the prior consent of an author to the use of his works can, under certain conditions, be expressed implicitly.
However, this can be the case only if the particular author is informed about the future use of his work by a third party as well as of the ways and means by which he can put an end to such use should he want to.
The court noted that the procedure provided for by French law did not guarantee that authors were being actually and individually informed of the envisaged digital exploitation of their work.
Therefore, it could very well happen that some of the authors were not aware of the envisaged use of their works and, therefore, were not able to take action should they so wish.
The CJEU maintained that, in such cases, a mere lack of opposition on the authors’ part cannot be considered as implicit consent to the use of their works. Furthermore, the court noted that the procedure for opposition provided for by French law is a cumbersome one which imposes compliance with a number of formalities for any author who wishes to object to the exploitation of his/her work.
The court continued to assert that though the objective underlying the digital exploitation of out-of-print books – namely that it is in the cultural interest of consumers and of society as a whole – is not illegal, the pursuit of such an objective still cannot justify a derogation to the authors’ rights provided for by EU law.
It is only if individuals and companies feel assured that the fruits of their labour will be safeguarded against anyone who wants to take a free ride over the investments made by others that new products will continue to emerge on the market.
It therefore stands to reason that the courts will in most cases take a protectionist stance towards such investors by seeking to stop the breach by third parties of the legal rights which copyright holders are endowed with.
Wishing all the readers a very Merry Christmas and a prosperous New Year 2017!
mariosa@vellacardona.com
Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.