The Digital Exploitation of Books in the Recent CJEU Case Law: Balancing Authors’ Rights with Access to Culture
We live in the era of information society and the way we relate to objects, experiences and activities has necessarily evolved through the use of digital and computer technologies. The cultural and artistic sectors could not be inevitably exempted from the implementation of technology to reproduce, to communicate and distribute copyright-protected works.
Accordingly, in the past few years, practitioners, right holders and enthusiasts have been used to expect Legislators and Courts to lead the changes in the field of copyright and related rights.
The CJEU has certainly been playing an important role in interpreting the relevant EU and national legislations, especially along with the main legal framework flowing from Directive 2001/29/EC. The Court issued decisions which have shaped “for better or worse” the protection and the exploitation of artistic and literary works in digital format and on the Internet.
In that vein, the CJEU’s judgments of November last in cases C-301/15 ‘Soulier and Doke’ and C-174/15 ‘Vereniging Openbare Bibliotheken‘ add to the debate on the right holders’ possible action as regards the exploitation of books, either when their reproduction and communication to the public or (public) lending are meant to be provided in digital form by third parties.
Those judgements interestingly intersect by laying down nuanced perspectives on the extent of protection and guarantees ultimately afforded to right holders.
“Soulier and Doke”
In this case, the CJEU dealt with the issue of the authorization to digital exploitation out-of-print books by French collective society – approved by the Minister responsible for Culture – , where the rights to the reproduction and the communication to the public – Article 2(a) and 3(1) of Directive 2001/29 – of the books were vested in authors and, possibly, publishers.
In particular, the request for a preliminary ruling lodged before the CJEU sought to determine whether the regulation of out-of-print books as detailed in the French Intellectual Property Code was legitimate. According to the French law, out-of-print books are those published in France before 1 January 2001 and have no longer been distributed by any publisher nor have been published in print or digital format. In this context, authors can file an opposition within six months from the publication of the out-of-print books on a specific database created to deny the digital resurrection of their works.
Therefore, the controversial issue hinged on the possibility for authors to oppose or to put an end to third parties’ digital exploitation of out-of-print books, where those third parties (publishers) had been previously authorized by approved collective societies.
First the CJEU affirmed that the authors’ lack of opposition cannot equate to their implicit consent to the digital use of the out-of-print books, since the French Intellectual Property Code does not ensure that all authors are duly informed on the prospective digital use of their works in order to provide an informed consent.
Secondly, authors have the right to put an end to the future digital exploitation of their works without being burdened with any formality, such it is requested by Article 5(2) of the Berne Convention. They can, therefore, prohibit such digital use without needing to obtain and prove the corresponding agreement of publishers, only authorized to exploit the works in printed format.
It is apparent that the CJEU carried out its assessment balancing the conflicting interests at stake. On the one hand, the society’s cultural interest in the digital exploitation of out-of-print books and, on the other hand, authors’ interests in the exclusive rights to the exploitation of the books. These cannot be overridden by the rights and benefits that can be granted under Directive 2001/29/EC to third parties, among others, publishers. Consequently, it concluded that the mechanism provided by the French law for a second-digital-birth to out-of-print books should be prohibited.
“Vereniging Openbare Bibliotheken”
The request for a preliminary ruling stemmed from Dutch VOB, which represents the interests of all public libraries in the Netherlands, contending that the national Law on Copyright already provides for electronic books to fall under the public lending exception, as implementing Article 6(1) of Directive 2006/115. Consequently, VOB challenged the Dutch draft legislation on libraries remotely lending electronic books insofar as it excludes digital lending from such exception.
First, the CJEU held that where the digital lending of electronic books on the part of public libraries is carried out according to a proceeding having a functional equivalence with the traditional lending of printed copies, then the exception applies to the digital lending. In particular:
- The digital copy of the book is uploaded to the public library’s server;
- The user is allowed to reproduce the digital copy by downloading it on its computer;
- Only one digital copy can be downloaded during the lending period
- After the expiration of the lending period the copy can no longer be used by that user.
All the above is aimed at creating a half-way solution between the necessity to interpret the public lending exception strictly, while affording a high level of protection to right holders, and, to ensure the effectivity of the exception itself. This latter indeed allows the derogation of right holders’ exclusive rights to authorize or prohibit the lending of the originals and copies of their works for cultural promotion objectives provided a remuneration is granted.
Secondly, the high level of protection for authors required under Directive 2001/29/EC also inspired the construction and the interpretation of Directive 2006/115. It follows, said the Court, that the national legislations of the Member States can provide for additional conditions than those contained in Article 6(1) of Directive 2006/115. Therefore, it may legitimate to request that, mirroring the rule of exhaustion of the right to distribution set out in Directive 2001/29/EC, in order for a digital copy of a book to be publicly lent, it must be first sold or its ownership must be otherwise transferred. This solution help find a balance between the public lending exception where the right holders’ consent is bartered for the society’s cultural interest in exchange for a fair remuneration and their enhanced protection.
Finally, as for the private copying exception, the CJEU applied by analogy to the public lending exception its arguments relying on the lawfulness of the source of the copy, where the book is made available by a public library in digital format.
Final remarks
At the outset, one may say that the above reported decisions lay down opposite grounds for interpreting the scope of the rights afforded authors when it comes to the digital exploitation of their books, also in case of public lending.
It may seem that in “Soulier and Doke” the CJEU has chosen a stricter approach for the enjoyment of digital books, than the opening to a broader access to culture as conceded in “Vereniging Openbare Bibliotheken”. If that was so, the case-law in “Soulier and Doke” would somehow run counter the objectives pursued by the Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market, which explicitly contemplates the implementation of legal mechanisms, with cross-border effect, to facilitate licensing agreements for out-of-commerce books and learned journals.
However, this writer opines that both decisions make a specific statement in favor of a high protection of authors’ rights, whose explicit consent to the digital exploitation of their books must be always preserved, unless exceptions to the exercise of their exclusive rights apply, as is the case for the public lending exception.
Nonetheless, even in this latter case, it is undeniable that the CJEU has requested that national legislations of the Member States and the national Courts have to seek a balance between the public’s cultural interest to have access to books in digital format and the existence of the necessary guarantees for a fair exploitation of authors’ works.
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