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(LUXEMBOURG) – The EU’s copyright directive protects the rights of authors against exploitation through the digital reproduction of out-of-print books, the EU’s top court ruled on Wednesday.
In France, ‘out-of-print books’ are defined as books published before 1 January 2001 so long as they are no longer commercially distributed or published in print or in digital format.
According to French legislation, an approved collecting society, the SOFIA, is responsible for authorising the reproduction and communication, in digital form, of out-of-print books, but authors ot their successors in title can oppose or end the exercise of those rights under certain conditions.
Two French authors had claimed the decree was not compatible with the EU’s copyright directive.
In its judgment, the Court of Justice noted that, subject to exceptions and limitations expressly provided for, authors do have the exclusive right to authorise or prohibit the reproduction and communication to the public of their works.
However, it holds that the prior consent of an author to the use of one of his works can, under certain conditions, be expressed implicitly. For the existence of such consent to be accepted, the Court considers, in particular, that every author must be informed of the future use of his work by a third party and of the means at his disposal to prevent it if he so wishes.
French legislation provides that the right to authorise the digital exploitation of out-of-print books is transferred to the SOFIA when the authors do not oppose it within a period of six months after the registration of their books in a database established to that effect.
The Court stated that the Conseil d’État did not show that this legislation included a mechanism ensuring authors are actually and individually informed.
Some of the authors concerned may not be aware of the envisaged use of their works and, consequently, are not able to adopt a position on it.
The Court added that the pursuit of the objective enabling the digital exploitation of out-of-print books in the cultural interest of consumers and of society, while compatible with the directive as such, cannot justify a derogation not provided for by the EU legislature from the protection that authors are ensured by the directive.
The Court states that the French legislation enables authors to put an end to the commercial exploitation of their works in digital format either by mutual agreement with the publishers of those works in printed format or alone, on condition that they provide evidence that they alone hold the rights in their works.
The Court declares, in this respect, that the right of the author to put an end to the future exploitation of his work in a digital format must be capable of being exercised without having to depend on the concurrent agreement of persons other than those to whom the author had given prior authorisation to proceed with such a digital exploitation and, thus, on the agreement of the publisher holding only the rights of exploitation of that work in a printed format.
Moreover, the author of a work must be able to put an end to the exercise of rights of exploitation of that work in digital format without having to submit beforehand to any additional formalities.
