Access to out-of-print books: a mechanism that is too adventurous for the CJEU

How can access be provided to out-of-print¹ 20th century books that are not in distribution but are still protected by copyright? It seemed that this issue had been resolved in France thanks to Law No. 2012-287 of 1 March 2012 (hereafter the "Law") and its implementing decrees. In accordance with these texts, a public online data base called ReLire was created by the French national library (the Bibliothèque nationale de France), which lists all of the 20th century books that are unavailable. In the absence of any opposition from the relevant authors and publishers, the exercise of the related digital rights is automatically transferred to Sofia, a collective management firm (société de gestion collective), which pays the potential royalties remitted to the authors.

However, in a decision rendered on 16 November 2016, the Court of Justice of the European Union (CJEU) partially invalidated this system (CJEU, 16 November 2016, C-301/15, Sara Doke v/ Premier ministre and Ministre de la Culture et de la Communication).

Two authors of literary works, Mr Soulier and Mrs Doke, seized the Conseil d’Etat, seeking the revocation of the decree on the digital exploitation methods for out-of-print books² on the grounds that the mechanism in place constituted an exception to or a limitation of the right of reproduction, which is not set out among the limitations and exceptions exhaustively listed in the European Directive 2001/29 of 22 May 2001 regarding the harmonisation of certain aspects of copyright and related rights in the information society (hereafter the "Directive"). The Conseil d'Etat decided to stay the proceedings and submit a preliminary question to the CJEU.

This question reiterates that, subject to the exceptions and limitations provided in the Directive, any use of a work by a third party implies the prior consent, whether explicit or implicit, of the author. However, according to the CJEU, the author "must actually be 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 this case, if each of the authors is not "actually and individually informed" , the Court holds that, "It is not inconceivable that some of the authors concerned are not, in reality, even aware of the envisaged use of their works and, therefore, that they are not able to adopt a position, one way or the other, on it. In those circumstances, a mere lack of opposition on their part cannot be regarded as the expression of their implicit consent to that use."

The Court also invalidates the mechanism that subjects the author's right to oppose to a condition: either that the author acts in agreement with his publisher or that he provides proof that he is the exclusive holder of rights to the relevant out-of-print book.

This decision, which illustrates how difficult it is to achieve a balance between the promotion of our heritage and copyrights, should soon lead to a review of the system in effect since 2012 to make out-of-print books available.

¹ A book is considered to be out of print when it was published in France before 1 January 2001 and is no longer distributed or published in printed or digital form. This concept is distinct from that of a work that is in the public domain and which copyright protection period has come to an end.
²Decree No. 2013-182 of 27 February 2013 regarding the application of Articles L.134-1 to L.134-9 of the Intellectual Property Code and the digital exploitation of out-of-print 20th century books.