Case C‑301/15

Marc Soulier

and

Sara Doke

v

Premier ministre

and

Ministre de la Culture et de la Communication

(Request for a preliminary ruling from the Conseil d’État (France))

(Reference for a preliminary ruling — Intellectual and industrial property rights — Directive 2001/29/EC — Copyright and related rights — Articles 2 and 3 — Rights of reproduction and communication to the public — Scope — ‘Out-of-print’ books which are not or no longer published — National legislation giving a collecting society rights to exploit out-of-print books for commercial purposes — Legal presumption of the authors’ consent — Lack of a mechanism ensuring authors are actually and individually informed)

Summary — Judgment of the Court (Third Chamber), 16 November 2016

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)

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)

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)