WIREDGOV

National legislation must guarantee the protection accorded to authors by the directive and ensure, in particular, that they are actually informed of the envisaged digital exploitation of their work, while being able to put an end to it without formalities.

In France, ‘out-of-print books’ are defined as books published before 1 January 2001 which are no longer commercially distributed or published in print or in a digital format. According to the French legislation, an approved collecting society, the SOFIA, is responsible for authorising the reproduction and communication, in digital form, of out-of-print books, it being understood that the authors of those books or their successors in title may oppose or put an end to the exercise of those rights under certain conditions.

Two French authors (Marc Soulier, who is better known as Ayerdhal and has since died, and Sara Doke) requested the annulment of a decree specifying certain aspects of the French legislation, claiming that that decree is not compatible with the copyright directive. In particular, those authors submit that the French legislation establishes an exception or limitation, not provided for in the directive, to the exclusive rights guaranteed to authors by the directive. The Conseil d’État français (French Council of State), before which the case has been brought, has referred a question to the Court of Justice on this subject.

In today’s judgment, the Court of Justice notes that, subject to the exceptions and limitations expressly provided for in the directive, authors 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.

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