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Thursday, 8 June 2017

French Counseil d'État invalidates decrees implementing law on out-of-commerce works

The late Marc Soulier
In late 2016 the Court of Justice of the European Union (CJEU) issued its decision in Soulier and Doke, C-301/15 [commented here and here].

As readers will remember, this was a reference for a preliminary ruling from the French Council of State, asking the CJEU to clarify the compatibility of the the 2012 French law on the digital exploitation of out-of-print 20th century books with the InfoSoc Directive.

As I discussed more at length herethe new Chapter IV in the French Code de la Propriété Intellectuelle (CPI) vested approved collecting societies with the right to authorise the reproduction and representation in digital form of out-of-print books published in France before 2001, while allowing the authors of those books (or their successors in title) to oppose or put an end to that practice subject to certain conditions. 

In its 53-paragraph decision the CJEU substantially followed the Opinion [here] of Advocate General Wathelet, and stated that the system of the InfoSoc Directive is one of broad and preventative rights. Although national initiatives on out-of-commerce works are not against the directive per se, the Court clarified that nonetheless authors - not collecting societies that do not have any direct mandate from them - must consent to third-party uses of their works.

Sara Doke
In this post I expressed the view that the CJEU decision in Soulier and Doke would likely have far-reaching consequences. A first direct effect is the ruling of the Council of State earlier this week, which has declared the decrees implementing the provisions in Chapter IV CPI [Articles 134-1 to 134-9] invalid due to misuse of powers (excès de pouvoir).

As noted by a learned and technological Katfriend, it is unclear (in the sense that the Council of State's decision does not say) whether the invalidity thus declared has retroactive effects (invalidity ex tunc) or just effects for the future (invalidity ex nunc).

If one wished to draw a parallel with the UK copyright world, a similar problem arose when Green J quashed the short-lived private copying exception ('personal copies for private use': s28B) [here]. In its ruling, the High Court of England and Wales declined in fact to make any determination as to whether or not the Regulations adopting s28B should be void ex tunc. This was on consideration that a declaration to this effect would raise "potentially complex and far reaching issues which it is appropriate to address in the circumstances of private law litigation between a specific rightholder and an alleged infringer. It will be for a defendant in future proceedings to explore and raise this issue, including whether the effect of the fact that they relied at the time upon Section 28B creates some species of estoppel, legitimate expectation or fair use defence in private law and whether, if such exists, this goes to the cause of action or the remedy or both." [para 19]

But what do readers, especially French ones, think?  

5 comments:

Franck Macrez said...

Dear Eleonora,

Here is what I can briefly say about the Conseil d'Etat decision.

The Conseil did answer to the question if invalidity shall be retroactive or not at point 7 of the decision :

- The invalidity must be retroactive, but existing contracts are not affected. During the public (and oral) report, one could understand the administrative judge considers that the nullity of the licenses from Sofia shall be heard by judicial courts.
The situation is quite paradoxical, with a legislation violating authors’ rights, but at least 15 000 licenses still in force…

- Anyway the invalidity must be retroactive : otherwise, it would be contrary to the principle of primacy and effectiveness of EU law when there is no imperative need to declare an invalidity ex-nunc.
French government and Sofia were asking for an invalidity that would have taken effect 12 months after the ruling… The ruling of last week looks like a shift of the Conseil d’Etat position about retroactivity of his decisions which started in 2004 (CE, ass., 11 mai 2004, req. n° 255886 à 255892, Assoc. AC ! ), under the influence of the ECJ (C‑110/15, Nokia).

Yours,

Franck Macrez

Eleonora Rosati said...

Hi Franck,

Thanks so much for the clarification! Do you think all this could have an impact on the law on image search?

Franck Macrez said...

Tricky question…
On the one hand, it seems possible to consider that the authors' information guarantees are fulfilled once the author has authorized online exploitation and his referencing. The ECJ’s reference to Svensson (Soulier, pt. 36) would be consistent with such an interpretation of the author's implied consent.
But, on the other hand, one can remain skeptical about the idea that there would be an additional remuneration without a new act of communication to the public, because there isn’t any new public (Svensson, pts 25-28).

Franck Macrez said...

As for the decision of the Council itself, it doesn't teach us much, repeating the rulings of the ECJ and deciding (my translation) :
"However, since the general scheme of the legislation is based on a balance between the principle of implicit consent of the authors and the organization of a right of withdrawal and opposition, all the provisions relating to the valorization of unavailable books must be regarded as an indivisible whole contrary to the requirements of European Union law"
Original in french is here : https://seafile.unistra.fr/f/962dbb6167/
Franck

Eleonora Rosati said...

Many thanks for your very interesting and valuable insights, Franck!

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