French Plan to Revive Old Books Tramples Authors’ Rights

(CN) – A French law authorizing the digital reproduction of out-of-print books violates EU copyright law by unilaterally taking away the rights of authors unless they specifically oppose the reproduction of their works, the European Court of Justice ruled Wednesday.

France defines out-of-print books for the purposes of its law as any work published before Jan. 1, 2001, that is no longer available for sale in print or digital format. The law makes the collecting society SOFIA responsible for putting such works out electronically, after first notifying authors or their successors and giving them a chance to opt out of the program.

Two French authors sued to annul the law, claiming it curtails their exclusive rights under EU copyright law. Hearing the case, the French Council of State asked the European Court of Justice to weigh in on whether the opt-out satisfies copyright law with respect to the rights of authors – particularly in cases where authors have previously agreed to the use of their works.

In a 6-page preliminary ruling, the Luxembourg-based high court said France’s law doesn’t go far enough in giving authors the opportunity to opt out of SOFIA’s electronic reproduction of their works. Specifically, the court found France hasn’t shown there’s a mechanism in place to notify authors individually about the reproduction plans.

“It is not therefore inconceivable that some of the authors concerned are not aware of the envisaged use of their works and, consequently, are not able to adopt a position on it,” the court wrote. “In those circumstances, a mere lack of opposition on their part cannot be regarded as the expression of their implicit consent to the use of their works, and it cannot reasonably be presumed that without opposition on their part, every author of ‘forgotten’ books is in favor of the ‘resurrection’ of those works.”

While the high court said the aim of the law – the cultural enhancement of consumers and society – is laudable, it can’t justify going against author protections laid down by EU lawmakers through copyright law.

The court also rejected France’s argument that authors who have given permission to other parties to use their works can’t opt out of the program.

“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 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,” the court wrote.

It is up to the French court to decide the dispute using the EU high court’s binding ruling.