La loi française sur les « livres épuisés » jugée contraire à la directive InfoSoc (CJCE, affaire C-301/15, 16 novembre 2016)

Article en anglais publié dans la revue Computer Law & Security Review, Volume 33, Numéro 2, Pages 256-260 “EU update”, Avril 2017

Lien vers l’article : https://www.sciencedirect.com/science/article/abs/pii/S0267364917300456#preview-section-snippets

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French “out-of-print” = European outlaw! – French law on “out-of-print books” is held contrary to the InfoSoc Directive (ECJ, case C-301/15, 16 November 2016).

With a view to modernizing copyright law and putting it up to the challenge of mass digitalization, French lawmaker created in 2012 a system aimed at reviving the exploitation of “out-of-print books”.

Under this law, an “out-of-print book” is defined as one published in France before 1 January 2000 and which is no longer commercially distributed by a publisher and not currently published in print or in digital. Every year, books fitting the above definition are registered in a dedicated database (named ReLIRE[1]), following advertisement measures intended to inform their authors and publishers.

One of the key features of this law is the “opt-out” system: once a book is officially (and publicly) added to ReLIRE,  the author and publisher have 6 months to jointly express their refusal that said book be added to the database - except if the author is the exclusive owner of all the rights, in which case he/she can act alone. Absent a timely “opt-out”, a new-and-approved collecting society (the SOFIA) is entrusted with the book’s digital exploitation. After that, the author alone can oppose the book’s digital exploitation provided he/she can prove that it damages his/her honor or reputation.

This “opt-out” system convinced some authors to challenge the law before the Conseil d’Etat (French Administrative Supreme Court). The latter decided to stay the proceedings and referred the case to the ECJ with the following question: “do Articles 2 and 5 of Directive 2001/29 preclude legislation…that gives approved collecting societies the right to authorize the reproduction and representation in digital form of “out-of-print books”, while allowing the authors of those books…to oppose or put an end to that practice, on the conditions that it lays down?”.

According to the ECJ, the answer is “yes”. Or more precisely: “yes, but...”.

Indeed, “authors are the only persons to whom that Directive gives, by way of original grant, the right to exploit their works” (pt. 47). Authors then have the exclusive right to authorize the reproduction and/or representation of their works. The case of “out-of-print books” is also not one that any of the exceptions to this general rule --exhaustively enumerated by the Directive and subject to a strict interpretation-- may cover. In other words, France acted like a “lone ranger” of copyright law by creating, out of nowhere, a new exception to the author’s monopoly.

The ECJ however opens an interesting door here, as it considers that the author’s consent (to the reproduction and/or representation of works) can, under certain circumstances, be “implicit” (pts. 37-39). The conditions under which such implicit consent may be admitted must however be strictly defined: an author must be individually and actually “informed of the future use of his work by a third party” and “the means at his disposal to prohibit it if he so wishes”. In the case at hand, French law lacks such safeguards, i.e. “a mere lack of opposition on [authors] part cannot be regarded as the expression of their implicit consent to that use” (pt. 43).

Fortunately, the ECJ does not criticize the digital exploitation of “out-of-print books” per se. On the contrary, it is “in the cultural interest of consumers and of society as a whole” (pt. 45) . But, as noble as it may be, it does not justify the creation of an exception not provided for by the Directive.

One question remains however: what about the licenses already granted by the SOFIA since 2012? Should they be deemed void following the ECJ’s decision and inevitable amendment to French law? Let us hope that the Conseil d’Etat will address this interesting question.

[1] ReLIRE, which means litteraly « re-read », actually stands for « REgistre des Livres Indisponibles en Réédition Electronique », or « Register of Unavailable Books Electronically Republished ».