The matter at hand
The question referred to the ECJ concerns French legislation relating to the digital exploitation of out-of-print books (books which are no longer commercially distributed by a publisher and are currently not published in print or digital form) of the 20th Century. The legislation introduced a system of mandatory collective management, with opt-out possibilities. In short, the French law gives approved collecting societies the right to authorise the reproduction and the representation in digital form of out-of-print books of the 20th Century, while allowing the authors of those books to oppose or put an end to that practice subject to certain conditions (inter alia proving that the author is the only right holder). In the event that the author does not make use of the opt-out possibility, the right to authorise the reproduction or performance of those books in digital format is exercised by approved collecting societies, six months after their registration in a publicly accessible database.
Two authors of literary works requested the Council of State in France to annul certain aspects of the French legislation, claiming that the French legislation establishes an exception or a limitation to the exclusive reproduction right of the authors as laid down in Article 2(a) of the InfoSoc DirectiveDirective 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, while this exception or limitation is not provided for in Article 5 of that Directive. The Council of State subsequently asked the ECJ whether the French system is compatible with the InfoSoc DirectiveDirective 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.
The judgment of the ECJ
The ECJ emphasizes that the rights guaranteed to authors by Articles 2(a) and 3(1) of the InfoSoc DirectiveDirective 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 are preventive in nature, in the sense that any reproduction or communication to the public of a work by a third party requires the prior consent of its author (paragraph 33). Those provisions also allow that consent to be expressed implicitly (paragraph 35). However, for the existence of such consent to be accepted, the ECJ considers that every author must actually be informed of the future use of his work by a third party and of the means at his disposal to prohibit it if he so wishes (paragraph 38).
Considering that the French legislation does not seem to offer a mechanism ensuring that authors are actually and individually informed, the ECJ holds that it is not inconceivable that some of the authors concerned are not aware of the envisaged use of their works and, therefore, that they are not able to adopt a position on it. In those circumstances, a mere lack of opposition on their part cannot be regarded as the expression of their implicit consent to that use (paragraph 43).
The ECJ adds that pursuing an objective such as the digital exploitation of out-of-print books in the cultural interest of consumers and of society as a whole (while compatible with the Directive as such) cannot justify a derogation not provided for by the EU legislature to the protection that authors are ensured by that Directive (paragraph 45).
Finally, the ECJ considers that the author of a work must be able to put an end to the exercise by a third party of exploitation rights 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, in certain circumstances, to a formality consisting of proving that other persons are not, otherwise, holders of other rights in that work (paragraph 51).