Is French law on out-of-print works compatible with EU law? A new CJEU reference

Books may also become permanently
unavailable when Kats appropriate them as beds

Can collecting societies authorise the reproduction and communication to the public of out-of-print works without an express prior mandate from relevant rightholders?

This question is not merely academic, as IPKat readers - in particular those based in France - may be aware that in 2012 France adopted a law allowing the digital exploitation of unavailable books of the 20th century. 

Among other things, this law provides for the appointment of a central collecting society that is in charge of granting licences in respect of orphan and out-of-print books, setting licence fees, collecting and keeping the revenues of unlocated rightholders for ten years. 

Unlike the UK licensing scheme [discussed here] and the Orphan Works Directive [discussed here], under this French law the search for relevant rightholders is to be carried out by the appointed collecting society. 

Libraries are allowed to use works for free after ten years from their inclusion in an orphan work database managed by the Bibliothéque Nationale de France. In any case, libraries would only be able to show orphan books to their subscribers. 

This legislative initiative was mainly aimed at permitting use of out-of-commerce works. As such, in this Kat's opinion it could be considered compatible with the Orphan Works Directive, since this expressly allows Member States “to address larger mass digitisation issues, such as in the case of so-called 'out-of-commerce' works” (Recital 4).

But can the same be said also in relation to other EU directives?

The French Council of State is in fact unsure whether a law that authorises a collecting society to allow the exploitation of works without prior permission from relevant rightholders (who can subsequently opt out of the system) is compatible with Directive 2001/29/EC (the InfoSoc Directive), or whether is instead tantamount to an undue limitation to authors' rights.

As such, last May the Council of State decided to seek guidance from the Court of Justice of the European Union and refer the following question:

Do the provisions… of Directive 2001/29/EC of 22 May 2001, preclude legislation… that gives approved collecting societies the right to authorise the reproduction and the representation in digital form of ‘out-of-print books’, 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 it lays down?

The case has now been numbered as C-301/15 and further details can be found on the website of the UK Intellectual Property Office, which also invites comments to be emailed to policy@ipo.gov.uk by 07 August 2015.