Earlier this month the Court of Justice of the EU (“CJEU”) has rendered a decision in the Marc Soulier, Sara Dokes v. Premier Ministre, Ministre de la Culture et de la Communication case (C-301/15), whereby it scrutinized the French “Code de la Propriété Intellectuelle” (“CDPI”). The CDPI makes the exploitation of the reproduction and communication to the public rights with regard to ‘out of print books’ subject to mandatory collective management if the author (or publisher) does not oppose the former within a time limit of six months after the registration of those books in a specific database. In order to put an end to the former, the author must obtain the agreement of a publisher when the latter has been granted rights of exploitation with regard to printed formats of those works. The collective management will also end if the author is able to provide evidence that no other person holds any rights in the work. According to the CJEU, such national legislation does not conform with EU copyright law.

The case in question revolves around two authors, Soulier and Dokes, who sought the annulment of articles L. 134-1 to L. 134-9 of the CDPI before the French national courts. They had argued, amongst other things, that by putting into place a mechanism as described above the CDPI provided an exception or limitation to the reproduction right and the right of communication to the public, which is not allowed under article 5 of the Information Society Directive 2001/29 (“Infosoc Directive”). The French Council of States decided to stay the proceedings and refer a question to the CJEU.

The CJEU first decided that the French system did not constitute an exception or limitation as provided for by article 5 of the Infosoc Directive. This article was therefore declared irrelevant to the assessment.

The CJEU then went on to state that:

  • while prior consent to acts of reproduction and communication to the public of a work may be given implicitly by the author, the author must be informed of the envisaged (future) use that will be made of his work by a third party and he must be able to prohibit it if he so wishes. 

    In this case the French system did not allow the author to “actually and individually be informed” of the former. In the absence thereof, “a mere lack of opposition” cannot be considered to be “the expression of an implicit consent”;

  • rights or benefits granted to third parties (non-authors) by national laws, in this case the right for publishers to decide with the author the end of the exploitation of a work, may not harm the rights granted exclusively to authors under the Infosoc Directive, i.e. the right of an author to put an end to the future exploitation of his work. This was, however, the case according to the CJEU;

  • moreover, imposing on an author the obligation to provide proof that other persons do not hold any rights in his work(s) constituted an infraction of article 5(2) of the Berne Convention, which precludes the “enjoyment” of the right of reproduction and communication from being subject to any formality.