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Authors of out-of-print books have a “right to be forgotten” for digital republication by royalty collectors, CJEU rules

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Authors of out-of-print books have a “right to be forgotten” for digital republication by royalty collectors, CJEU rules

The EU top court’s decision in case Marc Soulier and Sara Doke v Premier Ministre and Ministre de la Culture et de la Communication followed a preliminary ruling referred by the French Conseil d’Etat. The French law under scrutiny established that an approved collecting society (SOFIA in the case at hand) was responsible for authorising the reproduction and digital distribution of out-of print books. Such books are defined as those published before 1 January 2001 and are no longer commercially distributed or published in a print or digital format. 

The author’s consent to reproduction has to be explicitly given or in exceptional circumstances can also be expressed implicitly under EU Directive D 2001/29/EC, WIPR points out. The French legislation provided that the right to authorise the digital republication of out-of-print books is transferred to third parties when the author does not oppose it within a period of six months after his book is registered in a database.

Member States’ laws must establish mechanisms ensuring authors to be individually informed, the European Court clearly says in the judgment. The Court goes on by stating that “a mere lack of opposition on their part cannot be regarded as the expression of their implicit consent to the use of their works, especially since it cannot reasonably be presumed that, without opposition on their part, every author of forgotten books is in favour of the resurrection of those works, in view of their commercial use in a digital format.”  As a consequence, the French law is incompatible with the EU copyright directive. 

The decision is likely to have far-reaching effects since it contradicts those national laws that allow collecting societies to act as a proxy for authors, arsTechinicaUK notes. The EU Court also introduced some ideas contained in the Commission’s proposal on the new copyright directive, which contains provisions on out-of-commerce works. 

Earlier this month, the CJEU held, in another case regarding ebooks, in a preliminary ruling this time regarding Dutch law, that the public lending of electronic books must be treated the same way as the lending of print books. Before this case, the rules governing printed lending were not considered applicable to electronic lending under the rental and lending rights directive, points out. 

Therefore, there seems to be a growing trend in the European Court to uniform the treatment of digital and printed publications. 


Ilaria Fevola


2016-11-18 11:59

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