©-LAW

What room does EU copyright leave for national initiatives in areas harmonised by relevant EU directives? The question of  EU preemption  (linked to, yet distinct from,  EU supremacy ) in the area of copyright is not a new one. Personally, I have been very interested in it for a while  [see  here ] , and so has been apparently the Court of Justice of the European Union (CJEU).  A string of recent copyright decisions demonstrates a diminished tolerance on the side of the Court for diverging national solutions to copyright protection in areas for which EU harmonisation has occurred. In this sense, the search of flexibilities in EU copyright has been proving increasingly challenging ... if not a vain quest altogether.  Favouring internal market goals over pretty much anything else, the CJEU has not been shy in holding that certain national arrangements would be incompatible with EU law. In this sense, there is probably no need to recall th...

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 Directive ]  of the 2012  French law  to allow and regulate the digital exploitation of out-of-print 20th century books. As explained more at length  here ,  by introducing into the French  C ode 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, ...

Is a national law that provides  ab initio  that a collecting society - rather than the author of a work - has the right to authorise the reproduction and communication to the public of such work compatible with EU law? This - in a nutshell - is the question at the centre of what is probably  [of course, after  GS Media , on which see the string of IPKat posts  here ]  the most important copyright case of the year at the Court of Justice of the European Union (CJEU):  Soulier and Doke , C-301/15. Why this case matters The reason is soon explained: this reference for a preliminary ruling from the French  Conseil d’État is not just a case concerning the compatibility with EU law of the French  loi   ( Law No 2012-287 of 1 March 2012 ) to allow and regulate the digital exploitation of out-of-print 20th century books, but - more generally - a case that questions the actual freedom of Member States to legislate independently o...