Marc Soulier and Sara Doke v Premier ministre and Ministre de la Culture et de la Communication.
Date: 2016-11-16
30


In that regard, it must be observed, first of all, that the protection conferred by those provisions on authors must be given a broad interpretation (judgments of 16 July 2009, Infopaq International, C‑5/08, EU:C:2009:465, paragraph 43, and of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 96).
31


Therefore, that protection must be understood, in particular, as not being limited to the enjoyment of the rights guaranteed by Article 2(a) and Article 3(1) of Directive 2001/29, but as also extending to the exercise of those rights.
33


Next, it is important to emphasise that the rights guaranteed to authors by Article 2(a) and Article 3(1) of Directive 2001/29 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 (concerning the right of reproduction, see, to that effect, judgments of 16 July 2009, Infopaq International, C‑5/08, EU:C:2009:465, paragraphs 57 and 74, and of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 162, and, concerning the right of communication to the public, see, to that effect, judgments of 15 March 2012, SCF Consorzio Fonografici, C‑135/10, EU:C:2012:140, paragraph 75, and of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraph 15).
34


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 (see, to that effect, judgment of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraphs 24 and 25).
35


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.
36


Thus, in a case in which it was questioned about the concept of a ‘new public’, the Court held that, in a situation in which an author had given prior, explicit and unreserved authorisation to the publication of his articles on the website of a newspaper publisher, without making use of technological measures restricting access to those works from other websites, that author could be regarded, in essence, as having authorised the communication of those works to the general internet public (see, to that effect, judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 25 to 28 and 31).
43


It does not follow from the decision to refer that that legislation offers a mechanism ensuring authors are actually and individually informed. Therefore, 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.
47


In that regard, it is important to point out, first, that 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 that the authors are the only persons to whom that directive gives, by way of original grant, the right to exploit their works (see, to that effect, judgment of 9 February 2012, Luksan, C‑277/10, EU:C:2012:65, paragraph 53).
48


It follows that, if Directive 2001/29 does not prohibit Member States from granting certain rights or certain benefits to third parties, such as publishers, it is provided that those rights and benefits do not harm the rights which that directive gives exclusively to authors (see, to that effect, judgment of 12 November 2015, Hewlett-Packard Belgium, C‑572/13, EU:C:2015:750, paragraphs 47 to 49).
50


Secondly, it follows from Article 5(2) of the Berne Convention, which is binding on the Union for the reasons set out in paragraph 32 of the present judgment, 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.
51


It follows, in particular, that, in the context of legislation such as that at issue in the main proceedings, 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 circumstances, to a formality consisting of proving that other persons are not, otherwise, holders of other rights in that work, such as those concerning its exploitation in printed format.