Opinion of the Advocate General — ECLI:EU:C:2016:536
Date: 2016-07-07
Language of the case: French
Subject matter: Intellectual, industrial and commercial property;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: France

Summary — Judgment of the Court (Third Chamber), 16 November 2016 1. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Rights of reproduction and communication to the public — Scope (European Parliament and Council Directive 2001/29, Arts 2(a) and 3(1)) 2. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Rights of reproduction and communication to the public — Requirement of the author’s prior consent — Implicit consent — Lawfulness — Conditions (European Parliament and Council Directive 2001/29, recital 9 and Arts 2(a), 3(1) and (5)) 3. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Rights of reproduction and communication to the public — National legislation giving a collecting society rights to exploit out-of-print books for commercial purposes — Lack of a mechanism ensuring the authors concerned are actually and individually informed — Not permissible (European Parliament and Council Directive 2001/29, Arts 2(a) and 3(1)) 4. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Rights of reproduction and communication to the public — National legislation giving a collecting society rights to exploit out-of-print books for commercial purposes and subjecting the authors’ right of withdrawal to formalities — Not permissible (European Parliament and Council Directive 2001/29, Arts 2(a) and 3(1)) 1. The protection conferred on authors by Article 2(a) and Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be given a broad interpretation and is not limited to the enjoyment of the rights guaranteed by those provisions, but also extends to the exercise of those rights. (see paras 30, 31) 2. The rights guaranteed to authors by Article 2(a) and Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society 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. It follows that, subject to the exceptions and limitations laid down exhaustively in Article 5 of Directive 2001/29, any use of a work carried out by a third party without such prior consent must be regarded as infringing the copyright in that work. Nevertheless, Article 2(a) and Article 3(1) of Directive 2001/29 do not specify the way in which the prior consent of the author must be expressed, so that those provisions cannot be interpreted as requiring that such consent must necessarily be expressed explicitly. It must be held, on the contrary, that those provisions also allow that consent to be expressed implicitly. However, the 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. (see paras 33-35, 37, 38) 3. Article 2(a) and Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society 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 the Member State concerned which are no longer commercially distributed or 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. To the extent that such legislation does not include a mechanism ensuring authors are actually and individually informed, 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. This is all the more true considering that such legislation is aimed at books which, while having been published and commercially distributed in the past, are so no longer. That particular context precludes the conclusion that it can reasonably be presumed that, without opposition on their part, every author of these ‘forgotten’ books is, none the less, in favour of the ‘resurrection’ of their works, in view of their commercial use in a digital format. Admittedly, Directive 2001/29 does not preclude national legislation 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. (see paras 43-45, 52, operative part) 4. It follows from the exclusive nature of the rights of reproduction and communication to the public laid down in Article 2(a) and Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society that the authors are the only persons to whom that directive gives, by way of original grant, the right to exploit their works. It follows that, although Directive 2001/29 does not prohibit, moreover, Member States from granting certain rights or benefits to third parties, such as publishers, it is on the condition that those rights and benefits do not harm the rights which that directive gives exclusively to authors. Consequently, when the author of a work decides, in the context of the implementation of legislation giving a collecting society rights to exploit out-of-print books for commercial purposes, to put an end to the future exploitation of that work in a digital format, that right must be capable of being exercised 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. Furthermore, it follows from Article 5(2) of the Berne Convention for the Protection of Literary and Artistic Works that the enjoyment and the exercise of the rights of reproduction and communication to the public given to authors by that convention and corresponding to those laid down in Article 2(a) and 3(1) of Directive 2001/29 may not be subject to any formality. It follows, in particular, that the author of a work must be able to put an end to the exercise, by a third party, of rights of exploitation in digital format that he holds on that work, and in so doing prohibit him from any future use in such a format, without having to submit beforehand, in certain cases, to a formality consisting of proving that other persons are not in fact, holders of other rights in that work, such as those concerning its exploitation in printed format. (see paras 47-51)