CJEU ruling in Doke & Soulier case emphasizes the need for a real solution to the out-of-commerce problem

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Last week the CJEU handed down another judgement dealing with digital activities of libraries (see our take on the e-lending decision from 2 weeks ago here). In its judgement in the Doke & Soulier case (C 301/15) the court ruled that the French law on out-of-print books, which allows French publishers to publish digital editions of out-of-print books, violates the exclusive rights of authors as established by the InfoSoc directive. This means that the French scheme for making out-of-print books available (reLire) will either need to be modified or scrapped.

The judgement does not come entirely unexpected as it is largely in line with the Advocate General opinion from earlier this year. As we have already noted in our analysis of the AG opinion, the case has the potential to undermine Extended Collective Licensing (ECL), which is currently held as the solution for the issue of out-of-commerce works.

At this point it is unclear how the Doke & Soulier judgement relates to the EU Commission’s proposal for dealing with out-of-commerce works in the collections of cultural heritage institutions—currently a part of the proposal for a Copyright in the Digital Single Market directive. Regardless, the judgement  casts a shadow of doubt over ECL arrangements such as the one at the center of the Commission’s proposal. This is mainly due to the fact that through this decision the court has established stringent criteria that national measures would need to fulfil. The fact that according to the court “every author must actually be informed of the future use of his work by a third party and the means at his disposal to prohibit it if he so wishes” (para 38) seems to contradict the very purpose of Extended Collective Licensing arrangements, which is to circumvent the need to clear rights on a per-work (or per-rightsholder) basis.

Can ECL still provide a solution for out-of-commerce works?

Looking at the reasoning of the court, it becomes evident that the judgement is not so much concerned with the operation of of ECL as a legal mechanism, but rather with the question of whether EU member states can limit the ability of authors to exercise their exclusive rights in ways other than those foreseen by the EU legislator. The court answers this with a resounding “no” and then goes on to examine whether the French system respects the ability of authors to object to the use of their out-of-print works. The court comes to the conclusion that it does not, because authors are neither individually informed about future uses of their works, and because their ability to opt out of such uses is limited. In summary, the court does not declare ECL in general incompatible with the InfoSoc directive, but has ruled, that the French ECL implementation does not sufficiently respect the authors’ exclusive rights.

In the light of the ongoing efforts to modernize the EU copyright framework, this means that any legislative solution to the issue of out-of-commerce works needs to be based on a clearly defined exception to the exclusive rights of authors and other creators. The most obvious way to achieve this would be for the EU legislator to introduce a mandatory exception that allows cultural heritage institutions to make out-of-commerce works in their collections available online, which is exactly what cultural heritage institutions have been arguing for in the run up to the Commission’s proposals.

Unfortunately the Commission has not paid much attention to this recommendation,  and instead has presented a flawed proposal to require member states to introduce Extended Collective Licensing in their national laws. Given that the Commission’s proposal would explicitly introduce ECL into EU copyright law, but at the same time fails to create an explicit exception to the exclusive rights of authors and other creators, it remains an open question whether the Commission’s proposal would satisfy the requirements that CJEU has outlined in the Doke & Soulier decision. In this situation the EU legislator would probably be well advised to strengthen the Commission’s proposal by adding a mandatory exception benefitting cultural heritage institutions.

Commercial exploitation is not the answer

There also is another side of the Doke & Soulier case that has received relatively little attention, even though it provides an important clue for designing the EU approach to the out-of-commerce works problem: The French mechanism for making out-of-print works available relies on commercial publishers who can obtain licenses to re-publish digital editions of out-of-print works. In essence it tries to put the out-of-print works back into commercial circulation.

The reason why Doke & Soulier brought their legal challenge is the fact that the French system confiscates the exclusive rights to their works from authors (and previous publishers) and then lets a collecting society license them to other publishers. Even when one ignores the legal details of the case, it is hard to justify why the fact that a book is out-of-print should give reason to expropriate authors of their rights in favor of commercial exploitation by publishers.

It is difficult to understand why the French government is relying on this questionable mechanism to bring old books back into circulation when there is a much more obvious (and less problematic) solution: allow cultural heritage institutions to make out-of-commerce works in their collections available online as part of their existing public task.

Such a solution also limits the exclusive right of authors to control the use of their works, but it does so in a much less invasive way, and relies on public institutions that have a long history of providing access to works that have fallen out of commercial circulation. While this approach is central to the Commission’s proposal, it is needlessly weakened by the fact that recital 27 of the proposed directive would allow cultural heritage institutions to generate “reasonable revenues” from making out-of-commerce works available online.

It is unclear why the Commission has included this recital in its proposal. The idea that it is possible to generate significant revenues from providing online access to old collections has turned out to be wishful thinking. The only effect of allowing institutions to charge for access to works that they make available thanks to an exception is to undermine support among rightsholders. Providing access to cultural heritage is part of their public interest mission. Introducing revenue flows into the process only muddies the waters.

A real solution for out-of-commerce works is needed

Taking into account these two lessons from the Doke & Soulier ruling, it is clear that the Commission’s proposal for a “solution” to the out-of-commerce problem needs to be improved. It needs to be more solidly grounded in the public interest mission of cultural heritage institutions (removing recital 27 is a good first step) and it needs to be anchored by an exception to the exclusive rights  of authors that allows institutions to make these works available, either based on extended collective licensing or, where such arrangements cannot be expected to work, on the basis of that exception alone.

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