Copyright and out-of-print books – an European court’s decision

european-union-flagThe European court ruled in case C‑301/15, REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, France), made by decision of 6 May 2015, received at the Court on 19 June 2015, in the proceedings Marc Soulier, Sara Doke v Premier ministre, Ministre de la Culture et de la Communication, intervening parties: Société française des intérêts des auteurs de l’écrit (SOFIA), Joëlle Wintrebert and Others.

The case concerns the following:

Within the meaning of the Intellectual Property Code, an ‘out-of-print book’ means a book published in France before 1 January 2001 which is no longer commercially distributed by a publisher and is not currently published in print or in digital form. Articles L. 134-1 to L. 134-9 of that code established a legal framework intended to make those books accessible once again by organising their commercial exploitation in digital form. The detailed rules for the application of those provisions were laid down by Decree No 2013-182.

By application registered on 2 May 2013, Mr Soulier and Ms Doke, who are both authors of literary works, requested the Conseil d’État (Council of State, France) to annul Decree No 2013-182.

In support of their claim, they submit, in particular, that Articles L. 134‑1 to L. 134-9 of the Intellectual Property Code establish an exception or a limitation to the exclusive reproduction right laid down in Article 2(a) of Directive 2001/29 and that that exception or limitation is not included among those listed exhaustively in Article 5 thereof.

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 claim brought by Mr Soulier and Ms Doke.

In their respective defences, the Prime Minister and the Minister for Culture and Communication both contested that the claim should be dismissed.

SOFIA subsequently intervened in the proceedings, also seeking to have those claims dismissed. SOFIA presents itself as a society made up equally of authors and publishers, mandated to manage the right to authorise the reproduction and representation of out-of-print books in digital form, the public lending right and the remuneration for digital private copying in the field of writing.

After dismissing all the pleas of Mr Soulier and Ms Doke that rested on legal bases other than Articles 2 and 5 of Directive 2001/29, the referring court started the examination of the pleas relating to those articles by holding, immediately, that the treatment of that aspect of the case depends on the interpretation to be given of those articles.

In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice 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 Court’s decision:

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 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, that gives an approved collecting society the right to authorise the reproduction and communication to the public in digital form of ‘out-of-print’ books, namely, books published in France before 1 January 2001 which are no longer commercially distributed by a publisher and are not currently published in print or in digital form, 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 that legislation lays down.

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