Books may only be digitised with the consent of the author

In France, an "out-of-print book" is a book published before 1 January 2001 that is no longer commercially distributed and is no longer published in print or digital form. Under the French regime, an authorised collecting society called SOFIA is entrusted with allowing the reproduction and representation of out-of-print books indigitally, although the authors of the books or their successors in title may object to or prevent the exercise of these rights under certain conditions.

Two French authors (MarcSoulier, better known as Ayerdhal and now deceased, and Sara Doke) sought the annulment of a decree specifying certain aspects of this regime, which they claim is incompatible with the Copyright Directive 1. In particular, they claim that the French legislation creates an exception or limitation to the exclusive rights granted to authors by the Directive which was not provided for. The French Conseil d'État, before which the case was brought, referred the matter to the Court of Justice.

The Court points out in its judgment 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, under certain conditions, the prior consent of an author to the use of his work may be implied. The existence of such consent requires, in particular, that each author be informed of the future use of his work by a third party and of the means by which he may prevent such use if he so wishes.

The French regulation currently provides that the right to allow the digital use of out-of-print books is transferred to SOFIA if the author does not object to this within six months of the inclusion of his books in a database set up for this purpose. TheConseil d'État has not indicated whether the scheme ensures that each author is actually informed individually. It cannot therefore be ruled out that some authors concerned are in fact unaware of the planned use of their works and are therefore unable to comment on it. Under these conditions, the mere fact that they do not object to the use cannot be regarded as an expression of their implicit consent. This is all the more true as it cannot reasonably be assumed that all authors of "out-of-print" books who do not object agree to their works being "resurrected" for the purpose of commercial use in digital form. Moreover, while the pursuit of the objective of allowing digital use of out-of-print books in the cultural interest of consumers and society is in itself compatible with the Directive, it cannot justify an exception to the protection afforded to authors by the Directive which was not provided for by the Union legislature.

On this point, the Court points out that the French legislation allows authors to prevent the commercial exploitation of their works in digital form, either by acting in agreement with the publishers of the printed form of those works or by acting alone. In the latter case, however, they must prove that they are the sole holders of the rights in the works. The Court states in this respect that the author must be able to exercise the right to prevent the future use of his work in digital form without having to rely on the consent of persons other than those authorised to use it digitally and thus on the consent of the publisher who only holds the rights to use the work in printed form. Furthermore, the author of a work must be able to prevent the exercise of the rights to use the work in digital form without first having to observe additional formalities.


Source: Press release of the Court of Justice of the European Union


Goldberg Attorneys at Law 2016

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law