OPINION OF ADVOCATE GENERAL
WATHELET
delivered on 7 July 2016 (1)
Case C‑301/15
Marc Soulier,
Sara Doke
v
Ministre de la Culture et de la Communication,
Premier ministre
(Request for a preliminary ruling from the Conseil d’État (Council of State, France))
(Reference for a preliminary ruling — Directive 2001/29/EC — Copyright and related rights — Exclusive right of reproduction — Article 2 — Right of communication to the public — Article 3 — Exceptions and limitations — Article 5 — National legislation giving a collecting society rights to exploit out-of-print books for commercial purposes — Right of opposition enjoyed by authors or their successors in title)
I – Introduction
1. This request for a preliminary ruling, lodged on 19 June 2015 at the Court Registry by the Conseil d’État (Council of State, France), concerns the interpretation of Articles 2 to 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. (2)
2. This request was made in the course of proceedings between, on the one hand, Mr Marc Soulier and Ms Sara Doke and, on the other, the Ministre de la Culture et de la Communication (the French Minister for Culture and Communication) and the Premier Ministre (Prime Minister of France) concerning the legality of Decree No 2013-182 of 27 February 2013, implementing Articles L. 134-1 to L. 134-9 of the code de la propriété intellectuelle (French Intellectual Property Code) and relating to the digital exploitation of out-of-print 20th century books (3) (‘the decree at issue’).
II – Legal context
A – EU law
3. Article 2 of Directive 2001/29, entitled ‘Reproduction right’ reads as follows:
‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:
(a) for authors, of their works;
…’
4. Article 3 of that directive, entitled ‘Right of communication to the public of works and right of making available to the public other subject matter’ provides, inter alia, as follows in paragraphs 1 and 3 thereof:
‘1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
…
3. The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.’
5. Article 4 of that directive, entitled ‘Distribution right’, provides:
‘1. Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.
2. The distribution right shall not be exhausted within the Community in respect of the original or copies of the work, except where the first sale or other transfer of ownership in the Community of that object is made by the rightholder or with his consent.’
6. Article 5 of that directive, entitled ‘Exceptions and limitations’, states, inter alia, in paragraph 2 thereof, that Member States may, in the cases listed therein, provide for various exceptions and limitations to the reproduction right provided for in Article 2.
7. That article also provides, in paragraph 3 thereof, that Member States may, in the cases listed therein, provide for various exceptions and limitations to the rights of reproduction and communication provided for in Articles 2 and 3.
8. Furthermore, Article 5(5) provides as follows:
‘The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder.’
B – French law
The Law on out-of-print books
9. Loi n° 2012-287, du 1er mars 2012, relative à l’exploitation numérique des livres indisponibles du XXème siècle (Law No 2012-287 of 1 March 2012 on the digital exploitation of out-of-print 20th century books, ‘the Law on out-of-print books’) (JORF No 53 of 2 March 2012, p. 3986) added to Title III of Book One of the first part of the Intellectual Property Code, which deals with the exploitation of rights related to copyright, a Chapter IV, entitled ‘Special provisions relating to the digital exploitation of out-of-print books’, comprising Articles L. 134-1 to L. 134-9 of that code. Some of those articles were subsequently amended or repealed by loi No 2015-195, du 20 février 2015, portant diverses dispositions d’adaptation au droit de l’Union européenne dans les domaines de la propriété littéraire et artistique et du patrimoine culturel (Law No 2015-195 of 20 February 2015 containing various provisions implementing EU law in the fields of literary and artistic property and cultural heritage) (JORF No 45 of 22 February 2015, p. 3294).
10. Articles L. 134-1 to L. 134-9 of the Intellectual Property Code, as drafted following those two laws, read as follows:
‘Article L. 134-1
For the purposes of this Chapter, an out-of-print book means a book published in France before 1 January 2001 which is no longer being commercially distributed by a publisher and which is not currently published in print or in a digital format.
Article L. 134-2
A public database indexing out-of-print books shall be created and made openly available, free of charge, through an online, public communication service. The National Library of France (Bibliothèque nationale de France) shall be responsible for implementing and updating it and for recording the information provided for in Articles L. 134-4, L. 134-5 and L. 134-6.
…
Article L. 134-3
I. When a book has been registered in the database referred to in Article L. 134-2 for more than six months, the right to authorise its reproduction and performance in digital format shall be exercised by a collecting society governed by Title II of Book III of this Part and approved for that purpose by the Minister responsible for culture.
With the exception of the case provided for in the third subparagraph of Article L. 134-5, the reproduction and performance of the book in digital format shall be authorised, in return for remuneration, on a non-exclusive basis and for a renewable period of five years
II. Approved societies shall have standing to bring legal proceedings with a view to protecting the rights which they administer.
III. The approval provided for in I shall be issued having regard to:
…
2° the equal representation of authors and publishers among the members and within the executive bodies;
…
5° the fairness of the rules governing the distribution of collected income among successors in title, whether or not they are parties to the publishing contract. The author or authors of the book must not receive a lower amount than the publisher.
6° the evidentiary measures which the society intends to apply in order to identify and locate rightholders, for the purposes of distributing the collected income.
…
Article L. 134-4
I. The author of an out-of-print book or a publisher with the right to reproduce printed copies of that book may oppose the exercise by an approved collecting society of the right of authorisation referred to in the first subparagraph of Article L. 134-3(I). Notification of that opposition shall be submitted in writing to the body referred to in the first subparagraph of Article L. 134-2 no later than six months after the book in question has been registered in the database referred to in the same subparagraph.
Notice of that opposition shall be recorded in the database referred to in Article L. 134-2.
After expiry of the period referred to in the first subparagraph of paragraph I of this Article, the author of an out-of-print book may oppose the exercise of the right to reproduce or perform that book if he considers that the reproduction or performance of that book is liable to adversely affect his good name or reputation. That right is to be exercised without compensation.
II. A publisher which has given notice of its opposition as provided for in the first subparagraph of paragraph I of this Article shall be required to exploit the out-of-print book in question within two years following that notification. The publisher must provide, by any means, evidence of effective exploitation of the book to the collecting society approved pursuant to Article L. 134-3. If the book is not exploited within the prescribed period, the notice of opposition shall be deleted from the database referred to in Article L. 134-2 and the right to authorise its reproduction and performance in digital format shall be exercised as provided for in the second subparagraph of Article L. 134-3(I).
…
Article L. 134-5
If, upon expiration of the period laid down in Article L. 134-4(I), the author or publisher has not given notice of opposition, the collecting society shall offer authorisation to reproduce and perform an out-of-print book in digital format to the publisher having the right to reproduce that book in print.
…
The exploitation authorisation referred to in the first subparagraph shall be issued by the collecting society on an exclusive basis for a 10-year period which is tacitly renewable.
…
In the absence of an opposition from the author providing, by any means, evidence that that publisher does not have the right to reproduce the book in print format, a publisher which has notified its acceptance decision shall be required to exploit the out-of-print book in question within three years following that notification. He must provide, by any means, evidence to that society that the book is being effectively exploited.
If the offer referred to in the first subparagraph is not accepted or the book is not exploited within the period prescribed in the fifth subparagraph of this Article, the reproduction and performance of the book in digital format shall be authorised by the collecting society as provided for in the second subparagraph of Article L. 134-3(I).
…
Article L. 134-6
The author and publisher having the right of reproduction in print of an out-of-print book shall at any time jointly notify the collecting society referred to in Article L. 134-3 of their decision to withdraw the latter’s right to authorise the reproduction and performance of that book in digital format.
The author of an out-of-print book may decide at any time to withdraw from the collecting society referred to in Article L. 134-3 the right to authorise the reproduction and performance of a book in digital format if he provides evidence that he alone holds the rights laid down in L. 134-3. He shall notify it of his decision.
…
A publisher which has given notice of its decision as provided for in the first subparagraph shall be required to exploit the book in question within 18 months following that notification. It must, by any means, provide to the collecting society evidence of the effective exploitation of the book.
The society shall notify the decisions referred to in the first two subparagraphs of this Article to all users to whom it has granted authorisation to exploit the book in question. Where the exploitation of a book commences prior to the notification, successors in title cannot oppose its continued exploitation during the remaining period of the authorisation referred to in the second subparagraph of Article L. 134-3(I) or in the third subparagraph of Article L. 134-5, for a maximum of five years and on a non-exclusive basis.
Article L. 134-7
The detailed rules for the application of this Chapter, in particular the arrangements for access to the database provided for in Article L. 134-2, the nature and format of the data collected and the most appropriate publicity measures to ensure that successors in title are as well informed as possible, the conditions for issuing and withdrawing the approval of collecting societies provided for in Article L. 134-3, shall be laid down in a decree of the Conseil d’État.
Article L. 134-9
By derogation from the provisions in the first three subparagraphs of Article L. 321-9, income collected through the exploitation of out-of-print books which it has not been possible to distribute because the recipients could not be identified or located before expiry of the period provided for in the last subparagraph of L. 321-1 shall be used by the approved societies referred to in Article L. 134-3 for initiatives to support creative activities, initiatives to develop writers and initiatives by libraries to promote reading amongst the public.
…’
11. The detailed rules for the application of Articles L. 134-1 to L. 134-9 of the Intellectual Property Code were laid down in the contested decree.
III – The main proceedings and the question referred
12. The applicants in the main proceedings brought an application, lodged at the secretariat of the judicial section of the Conseil d’État on 2 May 2013, seeking the annulment for misuse of powers of the decree at issue. They submit, in particular, that the Law on out-of-print books, which that decree applies, is not compatible with the limitations and exceptions to the right to authorise the reproduction of a copyright work which are exhaustively set out in Directive 2001/29.
13. The Syndicat des écrivains de langue française (SELF), the Autour des auteurs association and 35 natural persons subsequently intervened in the proceedings in support of the form of order sought by the applicants in the main proceedings.
14. The defendants in the main proceedings contended that the application should be dismissed, submitting, in particular, that the decree at issue does not undermine the objectives of Directive 2001/29 since it does not establish an exception or limitation to the exclusive right of reproduction of a work within the meaning of that directive.
15. The Société française des intérêts des auteurs de l’écrit (‘SOFIA’) subsequently intervened in the proceedings, also seeking to have the application dismissed. That society had been authorised to exercise digital rights with respect to ‘out-of-print’ 20th century books by order of the Minister for Culture and Communication of 21 March 2013 (JORF No 76 of 30 March 2013, p. 5420).
16. By decision of 19 December 2013, the referring court referred a priority question on constitutionality to the Conseil constitutionnel (France) concerning the decree at issue. By decision of 28 February 2014, the latter held that Articles L. 134-1 to L. 134-9 of the Intellectual Property Code are consistent with the French Constitution, on the grounds, first, that the scheme of collective management of digital reproduction and performance rights for out-of-print books established thereby does not entail deprivation of property and, secondly, that the framework of conditions within which authors enjoy those rights did not constitute a disproportionate interference with it, in the light of the public interest objective pursued by the legislature.
17. According to the Conseil d’État, in order to ensure that better use is made of a written heritage which has become inaccessible for want of commercial distribution to the public, the decree at issue established a legal framework intended to encourage the digital exploitation of works reproduced in books published in France before 1 January 2001 which are no longer commercially distributed by a publisher and are not published in print or digital format. It notes that, in that case, the right to authorise the reproduction or performance of those books in digital format is exercised, six months after their registration in a publicly accessible database for which the National Library of France is responsible, by collecting societies approved to do so by the Minister responsible for culture.
18. The Conseil d’État states that the author of an out-of-print book or a publisher with the right to reproduce that work in print may raise an objection to the exercise of that right no later than six months after the book has been registered in the database. Moreover, according to the Conseil d’État, even after that period has expired, the author of an out-of-print book may, at any time, object to the exercise of the reproduction or performance right if he considers that the reproduction or performance of the book may adversely affect his good name or reputation. The Conseil d’État adds that the author of an out-of-print book may, furthermore, decide at any time to withdraw from the collecting society the right to authorise the reproduction and performance of the book in digital format as provided for in Article L. 134-6 of the Intellectual Property Code.
19. Having dismissed all the pleas of the applicants in the main proceedings which rested on legal bases other than Articles 2 and 5 of Directive 2001/29, the referring court considered that the response to the plea of the applicants in the main proceedings relating to those provisions depended on whether those provisions of Directive 2001/29 preclude legislation, such as that established in Articles L. 134-1 to L. 134-9 of the Intellectual Property Code, that gives approved collecting societies the right to authorise the reproduction and the performance 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.
20. In those circumstances, the Conseil d’État decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Do [Articles 2 and 5] of Directive 2001/29 … preclude legislation, such as that [established in Articles L. 134-1 to L. 134-9 of the Intellectual Property Code], 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?’
IV – The procedure before the Court
21. Written observations on the question referred for a preliminary ruling were submitted by Mr Soulier and Ms Doke, SOFIA, the French, German, Italian and Polish Governments and the Commission. SOFIA, the French, Czech and Polish Governments and the Commission presented oral argument at the hearing on 11 May 2016.
22. Mr Soulier and Ms Doke, along with the Commission, submit that the question referred for a preliminary ruling must be answered in the affirmative, while SOFIA and the French, German, and Polish Governments take the view that it should be answered in the negative. For its part, the Italian Government proposes that it be answered in the negative, subject to checks to be conducted by the referring court. The Italian Government proposes that the referring court be requested specifically to check that the legislation at issue does not constitute a disproportionate interference with the rights of authors, by examining, in particular, the provisions relating to the prior notice to be given to them, their rights of opposition and withdrawal and the arrangements for remunerating them.
V – Analysis
A – The scope of the question referred for a preliminary ruling
23. By its request for a preliminary ruling, the referring court asks the Court whether national legislation that gives approved collecting societies the right to authorise, (4) in return for remuneration, (5) the reproduction and performance (6) in digital format of ‘out-of-print’ books is compatible with Article 2(a) (7) of Directive 2001/29, which establishes an exclusive right of reproduction for authors, and with Article 5 of that directive, which allows Member States to provide for exceptions or limitations to that right. (8)
24. Notwithstanding the referring court’s reference solely to Articles 2 and 5 of Directive 2001/29, I consider, like the applicants in the main proceedings, the German Government and the Commission, that national legislation such as that at issue in the main proceedings — which allows, in certain circumstances, the digital exploitation of ‘out-of-print’ books by an approved collecting society — must be examined in the light not only of Article 2(a) of Directive 2001/29, (9) but also of Article 3(1) of that directive, which provides authors with the exclusive right to authorise or prohibit any communication of their works to the public.
25. The exploitation of a digital version of a book in such a way that the public may access it involves making it available to the public and constitutes, in my view, communication to the public of a work within the meaning of Article 3(1) of Directive 2001/29. (10)
26. It follows that, within the meaning of Article 2(a) and Article 3(1) of Directive 2001/29, the digital exploitation of copyright books constitutes ‘reproduction’ and ‘communication to the public’ of a work, which require individual and separate authorisation by the author, (11) unless those acts are covered by an exception or a limitation provided for in Article 5 of that directive. (12)
B – Article 5 of Directive 2001/29
27. Before expressing my view on the interpretation of Article 2(a) and Article 3(1) of Directive 2001/29, I would, from the outset, point out that I consider to be irrelevant Article 5 of that directive and the system of exceptions and limitations to the exclusive rights laid down in Articles 2 to 4 which Article 5 establishes.
28. Legislation such as that at issue in the case in the main proceedings is not included (13) in the detailed and exhaustive (14) list of exceptions and limitations in Article 5 of Directive 2001/29. (15)
29. Furthermore, there are strict boundaries placed on that system of exceptions and limitation by Article 5(5) of Directive 2001/29, which provides that they ‘are to be applied only in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder’. (16) Consequently, in order for an exception laid down in Article 5 of that directive to be relied upon the exception or limitation to the reproduction right or right of communication to the public must also fulfil the conditions set out in Article 5(5) of that directive. (17)
30. Finally, contrary to SOFIA’s observations, neither Article 5 of Directive 2001/29 nor indeed any other provision of that directive allows Member States to extend the scope of such exceptions or limitations. (18)
31. Such an initiative would be a matter exclusively for the EU legislature. Like the Commission, I take the view that, if the Member States were able to establish derogations from copyright other than those provided for at European level, it would undermine the legal certainty concerning copyright.
C – Scope of the exclusive rights to authorise or prohibit the reproduction of works and their communication to the public, conferred by Article 2(a) and Article 3(1) of Directive 2001/29
32. Since none of the limitations or exceptions to which Article 5 of Directive 2001/29 refers is conceivable here, it remains for me to examine the scope of the exclusive rights conferred by Articles 2 and 3 of that directive in order to compare it with the legislation which is the subject of the request for a preliminary ruling.
1. Preliminary observations
33. The need for uniform application of EU law and the principle of equality require that where provisions of EU law make no express reference to the law of the Member States for the purpose of determining their meaning and scope, as is the case with Articles 2 and 3 of Directive 2001/29, they must normally be given an autonomous and uniform interpretation throughout the European Union. (19)
34. According to settled case-law, in interpreting a provision of EU law it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part. (20) In this case, the principal objective of Directive 2001/29 is to establish a high level (21) of protection of, inter alios, authors, allowing them to obtain an appropriate reward for the use of their works, in particular on the occasion of reproduction or communication to the public. (22)
35. Under Article 2(a) and Article 3(1) of Directive 2001/29, authors enjoy exclusive rights to authorise or prohibit the reproduction of their works or their communication to the public. (23)
36. The Court has ruled that the exclusive rights at issue are preventive in nature and allow the author to intervene between possible users of his work and the reproduction (or communication to the public) (24) which such users might contemplate making, in order to prohibit such use.
37. Consequently, under Article 2(a) and Article 3(1) of Directive 2001/29, the author enjoys an exclusive right to decide whether and, where applicable, when and how he will authorise or prohibit the reproduction of his work or its communication to the public.
2. The author’s exclusive rights and national legislation such as that at issue in the main proceedings
a) The express and prior consent of the author
38. In my view, Article 2(a) and Article 3(1) of Directive 2001/29 require the prior express consent (25) of the author for any reproduction or communication to the public of his work, including in digital format. That consent (26) constitutes an essential prerogative of authors.
39. In the absence of any derogating EU legislation, (27) the author’s express and prior consent for the reproduction or communication to the public of his work cannot be eliminated, assumed or limited by substituting it with tacit consent (28) or a presumed transfer which the author must oppose within a fixed time limit and in accordance with conditions laid down by national law. It follows that national legislation like the decree at issue, which replaces the author’s express and prior consent with tacit consent or a presumption of consent, deprives the author of an essential element of his intellectual property rights.
b) Do the possibility of opposition and withdrawal and the right to remuneration change the scope of the exclusive rights at issue?
40. The fact that, under the national legislation at issue in the case in the main proceedings, authors are, subject to certain conditions, afforded opportunities to oppose (29) the exercise by SOFIA of the right to authorise the reproduction and communication to the public of their work in digital format (30) or to withdraw (31) from SOFIA the right to authorise the reproduction of a book or its communication to the public in digital format in no way alters that finding. (32)
41. Furthermore, the fact that the author receives remuneration or compensation, under the national legislation, (33) for the reproduction of his work or its communication to the public does not alter the fact that his exclusive rights will have been infringed.
42. The exclusive rights provided for in Article 2(a) and Article 3(1) of Directive 2001/29 include the right to receive an appropriate reward for the use of works but are not limited to that right alone. In that respect, the Court has already held that the copyright referred to in Article 2(a) and Article 3(1) of Directive 2001/29 must be distinguished from, for example, the right to remuneration (34) of performers and producers of phonograms provided for in Article 8(2) of Directive 2006/115.
c) Does the absence of commercial distribution of the work to the public affect the content of the exclusive rights at issue?
43. The fact that an author is not fully exploiting his work, for example in the event that it is not being commercially distributed to the public, (35) does not alter his exclusive rights to authorise or prohibit the reproduction of his work or its communication to the public.
44. In that regard, the Italian Government submits that ‘according to the traditional model of property rights, which developed on the basis of land ownership, it has always been accepted that the law [could] provide for (in addition to specific limitations to that right which require the owner to accept [certain] third-party acts affecting his capacity to enjoy his property for reasons of overriding public interest) situations in which the property right is extinguished on the ground of non-use, if third parties are making productive and therefore socially useful use of the property. Although an owner also has the right, inter alia, not to use his property, and consequently the right to property is not subject to a limitation period, there has always been acknowledgement of the benefit of favouring — over an owner who takes no interest in his property and therefore excludes it from the production cycle — a third party who, though having no legal title, actually makes use of the property and enables it to develop its economic potential’.
45. On the basis of the texts applicable here, that argument cannot be accepted in this case.
46. Directive 2001/29 does not provide for any penalty or consequence in the event of non-exercise or limited exercise by the author of his exclusive rights as laid down in Article 2(a) and Article 3(1) of that directive. Consequently, the exclusive rights at issue remain unaffected (36) even if they are not being ‘used’ by the rightholder.
47. Furthermore, this interpretation is borne out by Directive 2012/28.
48. That directive is concerned with certain uses of ‘orphan’ works, that is to say works which are protected by copyright and for which no rightholder is identified or, if identified, is not located. It was adopted because ‘in the case of orphan works, it is not possible to obtain such prior consent to the carrying-out of acts of reproduction or of making available to the public’. (37)
49. In that regard, Article 6(1) of Directive 2012/28 provides that Member States are to provide for an exception or limitation to the right of reproduction and the right of making available to the public provided for respectively in Articles 2 and 3 of Directive 2001/29 to ensure that the organisations referred to in Article 1(1) (38) of Directive 2012/28 are permitted to reproduce orphan works (39) contained in their collections, inter alia for the purposes of digitisation and to make them available to the public.
50. The exception or limitation to Articles 2 and 3 of Directive 2001/29 provided for in Article 6(1) of Directive 2012/28 is therefore very limited.
51. Furthermore, Article 6(2) of Directive 2012/28 provides that ‘the organisations referred to in Article 1(1) shall use an orphan work in accordance with paragraph 1 … only in order to achieve aims related to their public-interest missions, in particular the preservation of, the restoration of, and the provision of cultural and educational access to, works and phonograms contained in their collection. The organisations may generate revenues in the course of such uses, for the exclusive purpose of covering their costs of digitising orphan works and making them available to the public’. (40)
52. I take the view that it would be paradoxical if, pursuant to Directive 2012/28, the requirements imposed on the reproduction and communication to the public of an orphan work were far more stringent than those applicable to the same acts of exploitation in respect of ‘out-of-print’ books under national legislation such as that at issue in the main proceedings. (41)
53. In contrast to Directive 2012/28, which requires a diligent search for the rightholders to be conducted in good faith prior to the exploitation of a work, the national legislation at issue does not require an individual approach to be made to the author. In accordance with Article L. 134-3 of the Intellectual Property Code, once a book has been registered in the database referred to in Article L. 134-2, the author has six months to oppose the exercise by SOFIA of the right to authorise the reproduction in digital format of his work or its communication to the public in that form. Furthermore, whilst Article 6(2) of Directive 2012/28 expressly precludes any exploitation of an orphan work for commercial purposes, the national legislation at issue in the main proceedings is concerned with the commercial exploitation of ‘out-of-print’ books.
d) The management arrangements provided for in the national legislation at issue
54. SOFIA (42) and the French, (43) German and Polish Governments submit that the legislation at issue in the main proceedings does not affect the protection of copyright and simply constitutes an arrangement for managing certain rights and that Article 2(a) and Article 3(1) of Directive 2001/29 do not preclude Member States from establishing copyright management arrangements.
55. To my mind, such a view of copyright runs counter to Article (2)(a) and Article 3(1) of Directive 2001/29. (44) In providing for the author’s exclusive right to authorise or prohibit the reproduction and communication to the public of his works, those provisions also concern the way in which those rights are exercised by the author.
56. While it is true that Directive 2001/29 neither harmonises nor prejudices the arrangements concerning the management of copyright which exist in Member States, (45) the EU legislature, in providing that authors enjoy, in principle, exclusive rights to authorise or prohibit the reproduction of their work and its communication to the public, exercised its competence in the field of intellectual property.
57. In those circumstances, the Member States can no longer adopt management arrangements which compromise EU legislation, (46) even if this is done with the intention of furthering a public interest objective. (47) Before management of the rights of reproduction and communication to the public can be taken into consideration, the holder of those exclusive rights must have authorised a management organisation to manage his rights.
58. For the sake of completeness, I am of the view that confirmation of the foregoing is to be found in Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market, (48) which lays down ‘requirements necessary to ensure the proper functioning of the management of copyright and related rights by collective management organisations’, (49) even though that directive is not applicable ratione temporis to the case at issue in the main proceedings.
59. Article 5(2) of Directive 2014/26 provides that ‘rightholders shall have the right to authorise a collective management organisation of their choice to manage the rights, categories of rights or types of works and other subject matter of their choice, for the territories of their choice, irrespective of the Member State of nationality, residence or establishment of either the collective management organisation or the rightholder’. (50) Legislation such as that at issue in the main proceedings would not be consistent with that article.
60. Moreover, it is clear from Article 5(7) of Directive 2014/26 that a copyright holder must give ‘consent specifically for each right or category of rights or type of works and other subject matter which he authorises the collective management organisation to manage’. That article adds that ‘any such consent shall be evidenced in documentary form’.
61. Consent therefore remains the cornerstone of the author’s exercise of his exclusive rights.
e) Influence of the Memorandum of Understanding on key principles on the digitisation and making available of out-of-commerce works, signed on 20 September 2011 (51)
62. SOFIA and the French, German and Polish Governments note, lastly, that the background to the legislation at issue in the main proceedings is work carried out at EU level, the results of which were recorded in a memorandum of understanding on key principles on the digitisation and making available of out-of-commerce works, signed by associations of libraries, journalists, publishers, authors and artists on 20 September 2011, and witnessed by the Commission, (52) by representatives of European libraries, authors, publishers and collecting societies (‘the MoU’). The MoU, to which Directive 2012/28 expressly refers, (53) provides for the possibility of large-scale digitisation of out-of-commerce books in order to make them accessible to the public. It would also allow for the consent of authors to the collective management of their exploitation rights to be presumed provided, first, that all efforts have been made to inform them of this and, secondly, that their interests are protected by means of opt-out or withdrawal mechanisms.
63. Recital 4 of Directive 2012/28 provides ‘this Directive is without prejudice to specific solutions being developed in the Member States to address larger mass digitisation issues, such as in the case of so-called out-of-commerce works. Such solutions take into account the specificities of different types of content and different users and build upon the consensus of the relevant stakeholders. This approach has also been followed in the [MoU]. … This Directive is without prejudice to [the MoU], which calls on Member States and the Commission to ensure that voluntary agreements concluded between users, rightholders and collective rights management organisations to licence the use of out-of-commerce works on the basis of the principles contained therein benefit from the requisite legal certainty in a national and cross-border context’. (54)
64. In my view, that MoU is not a legally binding document which could limit the scope of the exclusive rights provided for in Article 2(a) and Article 3(1) of Directive 2001/29 and contains only an invitation to the Commission and Member States to ensure the legal certainty of voluntary agreements (55) concluded between users, rightholders and collective rights management organisations. There is no question of ‘voluntary agreements’ in the national legislation at issue.
VI – Conclusion
65. While not denying that giving new life to forgotten books, if necessary using new technologies, is a legitimate objective, I propose that the Court, in the light of the objectives of Directive 2001/29, the clear wording of Article 2(a) and Article 3(1) thereof, the absence of derogation from the principle of express and prior consent and the absence of contrary provisions of EU law, answer the question referred for a preliminary ruling by the Conseil d’État (France) as follows:
Article 2(a) and Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society preclude legislation, such as that established by Articles L. 134-1 to L. 134-9 of the Intellectual Property Code, which gives approved collecting societies the right to authorise the reproduction and the performance in digital form of ‘out-of-print books’, even if it allows the authors of those books, or their successors in title, to oppose or put an end to that practice, on certain conditions that it lays down.