EU member states must allow authors to prevent the digital reproduction of out-of-print books, Europe’s highest court has said.

　　The Court of Justice of the European Union (CJEU), in the case of Marc Soulier and Sara Doke v Premier ministre and Ministre de la Culture et de la Communication, added that national legislation must guarantee the protection afforded to authors by the copyright directive (2001/29/EC).

　　In a press release sent out on November 16, the CJEU said legislation must ensure that the authors are actually “informed of the envisaged digital exploitation” of their work, while “being able to put an end to it without formalities”.

　　The case stemmed from France, where two authors requested the annulment of a decree which they claimed was not compatible with the copyright directive.

　　Marc Soulier, better known as Ayerdhal and who has since died, and Sara Doke, the authors, argued that the French legislation establishes an exception or limitation which is not provided for in the directive to the exclusive rights guaranteed to authors.

　　The case was brought before the French Council of State, which referred a question to the CJEU on this subject.

　　According to the statement, out-of-print books in France are defined as those published before January 1, 2001 which are no longer commercially distributed or published in print or in a digital format.

　　The CJEU explained that French legislation provides that “the right to authorize the digital exploitation of out-of-print books is transferred to the SOFIA”, an approved collecting society, if authors don’t oppose the exploitation within six months after the registration of their books in a “database established to that effect”.

　　It added that, subject to the exceptions and limitations expressly provided for in the directive, authors have the “exclusive right to authorize or prohibit the reproduction and communication to the public of their works”.

　　But it added that an author’s prior consent to the use of their work 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,” it said.

　　The French Council of State had not shown that the legislation included a mechanism ensuring authors are actually and individually informed, according to the CJEU.

　　Because of this, it could be conceived that some of the authors concerned were not aware of the envisaged use of their works and, consequently, were not able to adopt a position on it.

　　Pursuing the digital exploitation of out-of-print books is compatible with the directive, explained the CJEU, but this can’t justify a “derogation not provided for by the EU legislature from the protection that authors are ensured by the directive”.

　　French legislation also enables authors to stop the commercial digital exploitation of their works either by mutual agreement with the print publishers of those works or alone, but they must provide evidence that only they hold the rights in their works.

　　“The court declares … that the right of the author to put an end to the future exploitation of his work in a digital format must be capable of being exercised without having to depend on the concurrent agreement of persons …” explained the CJEU.