In France, an "out-of-print book" refers to a book published before January 1, 2001, which is no longer commercially distributed and no longer published in printed or digital form. Under French regulations, an approved collective management organization named SOFIA is entrusted with authorizing the reproduction and communication to the public of out-of-print books in digital form, whereby 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 (Marc Soulier, better known as Ayerdhal and now deceased, and Sara Doke) sought the annulment of a decree that specifies certain aspects of this regulation and which, in their view, is incompatible with Copyright Directive 1. They argue, in particular, that the French regulation creates an unforeseen exception or limitation regarding the exclusive rights granted to authors by the Directive. The French Conseil d’État, seized of the matter, referred the question to the Court of Justice.
The Court of Justice points out in its judgment that, subject to the exceptions and limitations expressly provided for in the Directive, authors have the exclusive right to authorize or prohibit the reproduction and public communication of their works.
However, under certain conditions, an author's prior consent to the use of one of their works may be implicit. The existence of such consent specifically requires that each author be informed about the future use of their work by a third party, as well as the means by which they can prohibit the use, should they wish to do so.
The French regulation currently stipulates that SOFIA is granted the right to authorize the digital use of out-of-print books if the author does not object within six months of their books being included in a dedicated database. The Conseil d’État has not specified whether the regulation ensures that each author is actually individually informed. It is therefore not excluded that some affected authors may effectively be unaware of the planned use of their works and are thus unable to comment on it. Under these circumstances, the mere fact that they do not object to the use cannot be regarded as an expression of their implicit consent. This applies all the more as it cannot reasonably be assumed that all authors of "out-of-print" books who do not object agree to their works being "revived" for commercial use in digital form. Furthermore, while pursuing the objective of enabling the digital use of out-of-print books in the cultural interest of consumers and society is in itself compatible with the Directive, this cannot justify an exception to the protection granted to authors by the Directive that is not provided for by the Union legislator.
Furthermore, the Court points out that the French regulation allows authors to prevent the commercial use of their works in digital form, either by acting in agreement with the publishers of the printed form of these works or independently. In the latter case, however, they must prove that they are the sole rights holders of the works. The Court notes in this regard that the author must be able to exercise the right to prevent the future use of their work in digital form without being dependent on the consent of persons other than those authorized for digital use, and thus without the consent of the publisher who only holds the rights to use the work in printed form. Furthermore, the author of a work must have the possibility to prevent the exercise of rights for the use of the work in digital form without having to observe additional formalities beforehand.
Source: Press Release of the Court of Justice of the European Union
Goldberg Attorneys at Law 2016
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
