Is it permitted to reproduce out-of-commerce works and make them publicly accessible under European copyright exceptions? So far, there is no explicit regulation at European level dealing with out-of-commerce works. However, a few member states, including Germany, have already complemented their copyright by way of introduction of new provisions governing the use that one can make of out-of-stock works. In simple terms, national legislators mainly understand such works as works not being commercially available anymore.
The respective provision in French law has recently been subject to the European Court of Justice (CJEU). On 16 November 2016, the judges in Luxembourg handed down their judgment thereby declaring the French law incompatible with the InfoSoc Directive 2001/29. (Case Ref.: C-301/15).
Background to the preliminary ruling is an application for a declaration of invalidity of French provisions concerning out-of-commerce works made by the French authors Marc Soulier and Sara Doke. In 2012, the French legislator introduced provisions governing out-of-commerce books into the French copyright law (see LOI n° 2012-287 du 1er mars 2012 relative à l’exploitation numérique des livres indisponibles du xxe siècle). According to the provision:
- A book is out-of-commerce if it has been published before 1 January 2001 and if it is no longer commercially distributed or published in a printed or digital form.
- In order to enable the accessibility of the respective out-of-commerce books, the French collecting society SOFIA is allowed to authorize the reproduction and the public accessibility in a digital form, as far as the right holder has not opposed the use within a period of six months after the books are added to a specifically created database.
- Under certain conditions, the right holder can also put an end to the use at a later stage.
Soulier and Doke consider this provision an unjustified copyright infringement of their exclusive authors’ rights. In response to their legal action, the French Conseil d´État submitted the question to the CJEU as to whether the French provision is compatible with the demands set by the European law concerning reproduction and the barriers set by the InfoSoc Directive 2001/29.
The CJEU takes the view that the French provision infringes the author’s exclusive rights as granted in Articles 2 lit. a) and 3(1) of the InfoSoc Directive 2001/29.The Directive lays down the fundamental rights authors enjoy including the right to reproduce the work and to make it publicly available).
Moreover, the InfoSoc Directive holds certain exceptions and limitations to those rights. Accordingly, if no personal license exists, the reproduction or public communication is required to fall within one of the existing statutory permissions. In this context, the court underlines that there is no such statutory provision specifically relating to out-of-commerce works. The InfoSoc Directive is therefore to be understood as linking the reproduction and making available of out-of-commerce books to the prior – explicit or implicit – consent of the right holder.
According to the CJEU, such consent requires more than the absence of the right holder’s opposition within a period of six months after the book has been added into the database of out-of-commerce books. Rather, implicit consent requires the right holder to be actually and individually informed about the use of his work. In particular, it cannot be assumed that every right holder who has not opposed such use may be deemed satisfied with the third-party commercial use of the digitalized book.
Regarding the general aim of assuring a high level of copyright protection, the judges deem that the well-founded cultural interest of society in accessing out-of-commerce works cannot justify the French provision. Rather, the right holder must have adequate means to oppose the digital use without impractical formalities, such as having to monitor a database of works.
The importance of the CJEU’s current decision is apparent. On the one hand, it demonstrates that the scope for implementation available to Member States is limited as regards copyright exceptions. Although the issue of dealing with out-of-commerce works is not explicitly governed at European level, the national legislator is not totally free in limiting the rights granted under the InfoSoc-Directive. This is noteworthy, particularly as other Member States including Germany have also introduced laws on the use of out-of-commerce works.
On the other hand, the decision shines light on the current development in Brussels. The draft of the new Copyright directive published on the 14 September 2016 includes, under Article 7, a provision on the use of out-of-commerce works. So-called cultural heritage institutions shall receive the privilege to digitize, distribute, communicate to the public or make available out-of-commerce works under certain conditions. The draft is still under review and the current decision of the CJEU will certainly influence the debate.