Thursday, 17 November 2016

The CJEU decision in Soulier: what does it mean for laws other than the French one on out-of-print books?

The late Marc Soulier,
also known as Ayerdhal
As reported by this blog through a breaking news post, yesterday the Court of Justice of the European Union (CJEU) issued its decision in Soulier and Doke, C-301/15.

This was a reference for a preliminary ruling from the French Conseil d’État (Council of State) and concerned the compatibility with EU law [read: the InfoSoc Directiveof the 2012 French law to allow and regulate the digital exploitation of out-of-print 20th century books.

As explained more at length hereby introducing into the French Code de la propriété intellectuelle (CPI) a new chapter [Chapter IV - Articles L 134-1 to L 134-9, subsequently amended] to Title III of Book I, this piece of legislation has vested approved collecting societies with 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 subject to certain conditions. 

More specifically, the relevant implementing decree has 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. 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 Ministry of Culture.

In yesterday's post, I expressed the view that this new CJEU decision might have far-reaching implications, that go well beyond the sole piece of legislation at the centre of the case.

After reading the decision, this seems indeed to be the case.

What the CJEU said

Preliminary remarks

In its 53-paragraph decision, also clarifying that the case had nothing to do with copyright exceptions [so that, in line with the Opinionhere, of Advocate General (AG) Wathelet, Article 5 of the InfoSoc Directive would be irrelevant], the Court noted that the national legislation at issue would call into consideration: (1) the right of reproduction within the meaning of Article 2(a) of the InfoSoc Directive; and (2) the right to authorise the representation under that form and that such a representation constitutes a communication to the public within the meaning of Article 3(1) of that directive.

The actual question referred by the French court should be therefore read as asking whether Article 2(a) and Article 3(1) of the InfoSoc Directive preclude national legislation 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, 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.

The other author
at the centre of the case:
Sara Doke
Broad and preventive rights

The Court noted at the outset that the protection conferred by Articles 2(a) and 3(1) of the InfoSoc Directive must be given a broad interpretation. It follows [para 31] that, in line with the Berne Convention, “that protection must be understood, in particular, as not being limited to the enjoyment of the rights guaranteed by Article 2(a) and Article 3(1) of Directive 2001/29, but as also extending to the exercise of those rights.”

The Court then recalled that [para 33] such exclusive rights are preventive in nature, in the sense that any reproduction or communication to the public of a work by a third party requires the prior consent of its author.

The most straightforward consequence of this is that [para 34], subject to the exceptions and limitations laid down exhaustively in Article 5, any use of a work carried out by a third party without such prior consent (of the author) must be regarded as infringing copyright in that work. 

The form and substance of consent

This said, the Court conceded [para 35] that neither Article 2(a) nor Article 3(1) specify the way in which the prior consent of the author must be expressed: those provisions do not require such consent to be necessarily expressed explicitly. Hence, those provisions also allow that consent to be expressed implicitly. An example - said the Court - is what happens in the case of communication to the public in an online environment with the (psychological) notion of ‘new public’ [para 36], as adopted in Svensson.

However, [paras 37-40]

[T]he objective of increased protection of authors to which recital 9 of Directive 2001/29 refers implies that the circumstances in which implicit consent can be admitted must be strictly defined in order not to deprive of effect the very principle of the author’s prior consent.

In particular, every 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.

Failing any actual prior information relating to that future use, the author is unable to adopt a position on it and, therefore, to prohibit it, if necessary, so that the very existence of his implicit consent appears purely hypothetical in that regard.

Consequently, without guarantees ensuring that authors are actually informed as to the envisaged use of their works and the means at their disposal to prohibit it, it is de facto impossible for them to adopt any position whatsoever as to such use.”

Having said so, the Court turned to consideration of the French law, and noted how that legislation does not appear to offer a mechanism ensuring that authors are actually and individually informed. Therefore, 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.

Writer's block for Merpel
But initiatives on out-of-commerce works are not completely out

In all this, the Court did not place an absolute ban on future legislative interventions based on the InfoSoc Directive [and it would seem also on other pieces of legislation, eg the recent proposal of the EU Commission for a Directive on copyright in the Digital Single Markethere]. In fact [para 45]:

Admittedly, Directive 2001/29 does not preclude national legislation, such as that at issue in the main proceedings, from pursuing an objective such as the digital exploitation of out-of-print books in the cultural interest of consumers and of society as a whole. However, the pursuit of that objective and of that interest cannot justify a derogation not provided for by the EU legislature to the protection that authors are ensured by that directive.”

Removing consent

The Court also added that the InfoSoc Directive does not prohibit Member States from granting certain rights or certain benefits to third parties, such as publishers, as long as those rights and benefits do not harm the rights which that directive gives exclusively to authors. 

When the author of a work decides to put an end to the future exploitation of that work in a digital format, that right must be capable of being exercised:

a)  without having to depend, in certain cases, on the concurrent will of persons other than those to whom that 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 [para 49]; and
b)  without being subject to any particular formality [para 50].

In conclusion

Article 2(a) and Article 3(1) of the InfoSoc Directive must be interpreted as precluding national legislation 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.

Comment

Yesterday’s decision marked an important moment in CJEU copyright jurisprudence. 

Any freedom left?
From an EU perspective

Although the Court relied on concepts also employed in previous decisions [eg that economic rights must be interpreted broadly and considered preventive in nature], it used the so called author principle [ie the principle that, as a general rule, the author is also the first owner of copyright] to push the boundaries of EU harmonisation further and, by doing so, restrict Member States' legislative freedom.

First, despite contrasting hints in the past in which the CJEU appeared to employ the terms 'authors' and 'rightholders' interchangeably, the Court reinforced the idea that who the InfoSoc Directive intends to grant a 'high level of protection' to is authors.

Secondly, although not referring explicitly to the notion of EU preemption [on which see also here], the CJEU fully embraced it. In this sense, there is no gap between the CJEU judgment and the AG Opinion [paras 55-57], which rejects the view that the national legislation at issue would not affect the protection of copyright because it simply constitutes an arrangement for managing certain rights which the InfoSoc Directive does not preclude. What matters - for both the CJEU and the AG - is whether authors have had the possibility to express their individual consent. 

From a practical perspective

It would appear that, post-Soulier and lacking specific 'EU-endorsed authorisation' to the contrary, national legislative initiatives (including licensing schemes) that fail to incorporate appropriate and streamlined procedures to (1) inform authors of possible future uses of their works, and (2) obtain their relevant, individual, consent are likely to be regarded as incompatible with EU law.

In light of all this one may wonder whether another piece of French legislation, ie the law on freedom of creation, architecture and cultural heritage, is against EU law. 

As this blog reported, among other things this introduced new provisions [Articles L 136-1 to 136-4] into the CPI to regulate the exercise of the exclusive rights of reproduction and representation vis-à-vis automated image referencing services. Article 136-2(1) CPI clarifies that the publication of a plastic artwork, graphic or photographic work by an online communication service is subject to the consent - not of authors - but rather one or more collecting societies appointed to this end by the French Ministry of Culture. It would appear that an author only has the right to indicate which collecting society would undertake this task (lacking such indication, then a presumption would operate in favour of a designated collecting society), but not also authorise the relevant collecting society to authorise the making of acts restricted by copyright.

On a similar note, as suggested by Sylvie Nérisson on the Kluwer Copyright Blog at the time of the AG Opinon, also certain national licensing schemes - including systems of extended collective licensing - may fall short of what EU law requires in terms of authors' consent.  

All in all ... a subtle message from the CJEU
Turning now to the provisions on out-of-commerce works as contained in the recently proposed Directive on copyright in the Digital Single Market, Article 7(1) states that:

"Member States shall provide that when a collective management organisation, on behalf of its members, concludes a non-exclusive licence for non-commercial purposes with a cultural heritage institution for the digitisation, distribution, communication to the public or making available of out-of-commerce works or other subject-matter permanently in the collection of the institution, such a non-exclusive licence may be extended or presumed to apply to rightholders of the same category as those covered by the licence who are not represented by the collective management organisation, provided that: 

(a) the collective management organisation is, on the basis of mandates from rightholders, broadly representative of rightholders in the category of works or other subject-matter and of the rights which are the subject of the licence; 
(b) equal treatment is guaranteed to all rightholders in relation to the terms of the licence; 
(c) all rightholders may at any time object to their works or other subject-matter being deemed to be out of commerce and exclude the application of the licence to their works or other subject-matter."

One may question whether the extension of the licence also to non-members and the fact that the mechanism envisaged by the proposed directive is opting-out rather than opting-in, is fully compliant with Soulier.

A conclusion of the conclusion

In all this, yesterday's CJEU decision does not necessarily mean the end for all these sorts of initiatives - whether at the national or EU levels. 

However, what is (now?) required is a more careful approach by relevant legislators to ensure that the principles established at the level of the InfoSoc Directive and elaborated further in yesterday's CJEU decision are fully respected. 

As a final note - although the CJEU did not bring fundamental rights into the picture this time - as I also discussed here, these may matter in a situation in which authors are deprived of their ability to authorise the making of acts restricted by copyright. In fact, it may be argued that all this could amount to a deprivation of authors' fundamental right to intellectual property protection, as per Article 17(2) of the Charter of Fundamental Rights of the European Union

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