Advocate General issued an opinion regarding out-of-print books

12115590_m1The Advocate General of the European Court M. WATHELET  gave an opinion in case  C‑301/15 Marc Soulier, Sara Doke versus Ministre de la Culture et de la Communication, Premier ministre. The case concerns the following:

The applicants in the main proceedings brought an application, lodged at the secretariat of the judicial section of the Conseil d’État on 2 May 2013, seeking the annulment for misuse of powers of the decree at issue. They submit, in particular, that the Law on out-of-print books, which that decree applies, is not compatible with the limitations and exceptions to the right to authorise the reproduction of a copyright work which are exhaustively set out in Directive 2001/29.

The Syndicat des écrivains de langue française (SELF), the Autour des auteurs association and 35 natural persons subsequently intervened in the proceedings in support of the form of order sought by the applicants in the main proceedings.

The defendants in the main proceedings contended that the application should be dismissed, submitting, in particular, that the decree at issue does not undermine the objectives of Directive 2001/29 since it does not establish an exception or limitation to the exclusive right of reproduction of a work within the meaning of that directive.

The Société française des intérêts des auteurs de l’écrit (‘SOFIA’) subsequently intervened in the proceedings, also seeking to have the application dismissed. That society had been authorised to exercise digital rights with respect to ‘out-of-print’ 20th century books by order of the Minister for Culture and Communication of 21 March 2013 (JORF No 76 of 30 March 2013, p. 5420).

By decision of 19 December 2013, the referring court referred a priority question on constitutionality to the Conseil constitutionnel (France) concerning the decree at issue. By decision of 28 February 2014, the latter held that Articles L. 134-1 to L. 134-9 of the Intellectual Property Code are consistent with the French Constitution, on the grounds, first, that the scheme of collective management of digital reproduction and performance rights for out-of-print books established thereby does not entail deprivation of property and, secondly, that the framework of conditions within which authors enjoy those rights did not constitute a disproportionate interference with it, in the light of the public interest objective pursued by the legislature.

According to the Conseil d’État, in order to ensure that better use is made of a written heritage which has become inaccessible for want of commercial distribution to the public, the decree at issue established a legal framework intended to encourage the digital exploitation of works reproduced in books published in France before 1 January 2001 which are no longer commercially distributed by a publisher and are not published in print or digital format. It notes that, in that case, the right to authorise the reproduction or performance of those books in digital format is exercised, six months after their registration in a publicly accessible database for which the National Library of France is responsible, by collecting societies approved to do so by the Minister responsible for culture.

The Conseil d’État states that the author of an out-of-print book or a publisher with the right to reproduce that work in print may raise an objection to the exercise of that right no later than six months after the book has been registered in the database. Moreover, according to the Conseil d’État, even after that period has expired, the author of an out-of-print book may, at any time, object to the exercise of the reproduction or performance right if he considers that the reproduction or performance of the book may adversely affect his good name or reputation. The Conseil d’État adds that the author of an out-of-print book may, furthermore, decide at any time to withdraw from the collecting society the right to authorise the reproduction and performance of the book in digital format as provided for in Article L. 134-6 of the Intellectual Property Code.

Having dismissed all the pleas of the applicants in the main proceedings which rested on legal bases other than Articles 2 and 5 of Directive 2001/29, the referring court considered that the response to the plea of the applicants in the main proceedings relating to those provisions depended on whether those provisions of Directive 2001/29 preclude legislation, such as that established in Articles L. 134-1 to L. 134-9 of the Intellectual Property Code, that gives approved collecting societies the right to authorise the reproduction and the performance in digital form of ‘out-of-print books’, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that it lays down.

In those circumstances, the Conseil d’État decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Do [Articles 2 and 5] of Directive 2001/29 … preclude legislation, such as that [established in Articles L. 134-1 to L. 134-9 of the Intellectual Property Code], that gives approved collecting societies the right to authorise the reproduction and the representation in digital form of “out-of-print books”, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that it lays down?’

The Advocate’s opinion:

While not denying that giving new life to forgotten books, if necessary using new technologies, is a legitimate objective, I propose that the Court, in the light of the objectives of Directive 2001/29, the clear wording of Article 2(a) and Article 3(1) thereof, the absence of derogation from the principle of express and prior consent and the absence of contrary provisions of EU law, answer the question referred for a preliminary ruling by the Conseil d’État (France) as follows:

Article 2(a) and Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society preclude legislation, such as that established by Articles L. 134-1 to L. 134-9 of the Intellectual Property Code, which gives approved collecting societies the right to authorise the reproduction and the performance in digital form of ‘out-of-print books’, even if it allows the authors of those books, or their successors in title, to oppose or put an end to that practice, on certain conditions that it lays down.

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