CJEU Advocate General's opinion in case related to the digitisation of “out-of-print books” in France

On 7 July 2016, Advocate General to the Court of Justice of the European Union (CJEU) Melchior Wathelet has delivered his opinion in Case C‑301/15 (Soulier and Doke v Ministre de la Culture et de la Communication, Premier ministre).

The case had been referred to the Court of Justice by the French Council of State who asked the Court to clarify whether the French legislation on the digitisation of “out-of-print books”, which gives to approved CMOs the right to authorise the reproduction in digital form of “out-of-print books”, is compatible with Directive 2001/29/EC.

In his opinion, Advocate General Wathelet argues, in essence, that the French legislation is not compatible with Directive 2001/29, on the following grounds:

·         According to him, the French legislation does not allow the author to give prior express content for the reproduction and communication to the public of his works, which he argues is a necessary requirement in EU law and “an essential prerogative of authors”;

·         The Advocate General further adds that the possibility for the author to oppose or withdraw the exercise of his rights by the CMO, the remuneration that he receives for the reproduction/communication to the public of his works, and the fact that the works are not commercially distributed do not alter his conclusion;

·         When referring to the Memorandum of Understanding on the digitisation and making available of out-of-commerce works (find it here) signed by IFRRO, the European Writers’Council (EWC), the European Visual Artists (EVA), the European Federation of Journalists (EFJ), the Federation of European Publishers (FEP), the European Publishers Council (EPC),STM and the three European library associations, facilitated by the European Commission and also signed by the pertinent Commissioner, AG Wathelet highlights that the MoU is not a legally binding instrument and that its purpose is to enable Member States to ensure legal certainty for agreements negotiated on a voluntary basis.

The Opinion can be found here, and the CJEU decision is expected in October.