16 November 2016

SOFIA's [Non]Choice Rejected

You may recall my outrage at the arrogance of the Bibliothèque Nationale's seizure of electronic rights for "out of print" books a while back. Earlier today, the Court of Justice of the European Union smacked down that arrogance, ruling that

43. It does not follow from the decision to refer that that [French] legislation offers a mechanism ensuring authors are actually and individually informed. Therefore, it is not inconceivable that some of the authors concerned are not, in reality, even aware of the envisaged use of their works and, therefore, that they are not able to adopt a position, one way or the other, 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.

44. This is all the more true considering that such legislation is aimed at books which, while having been published and commercially distributed in the past, are so no longer. That particular context precludes the conclusion that it can reasonably be presumed that, without opposition on their part, every author of these ‘forgotten’ books is, however, in favour of the ‘resurrection’ of their works, in view of their commercial use in a digital format.

45. Admittedly, Directive 2001/29 does not preclude national legislation, such as that at issue in the main proceedings, from 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. However, the pursuit of that objective and of that interest cannot justify a derogation not provided for by the EU legislature to the protection that authors are ensured by that directive.

* * *

52. Having regard to all of the foregoing considerations, the answer to the question is that Article 2(a) and Article 3(1) of Directive 2001/29 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, that gives an approved collecting society the right to authorise the reproduction and communication to the public in digital form of ‘out-of-print’ books, namely, books published in France before 1 January 2001 which are no longer commercially distributed by a publisher and are not currently published in print or in digital form, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that that legislation lays down.

Soulier v. Ministre de la Culture et de la Communication [of France], No. C–301/15 (CJEU 16 Nov 2016).

Backtracking a bit and expanding on what the CJEU did not say, in 2012 the French legislature amended its intellectual property law to allow its designated authors-rights society, SOFIA (think of ASCAP or BMI), to authorize and accept rights payments for digital editions of out-of-print-in-France books. The mechanism was classic opt-out-with-obscurity, as so often proposed by the information-wants-to-be-free-and-everything-is-merely-information warriors. The Bibliothèque Nationale would publish a list of works proposed for unrestricted digitization on its website — without an index, without translation to the author's native tongue other than French — and, if six months later, there was no objection formally posed that included documentary proof that the objector had all rights, the work would be released for digitization. SOFIA would collect any rights fees generated on behalf of the authors, should they later make a separate claim to SOFIA (although to my admittedly imperfect knowledge, no such payments have been made to any non-EU author and virtually none outside of France).

Today's opinion basically says:

  • Your objective of making materials accessible despite commercial barriers imposed by parties other than the authors — publisher profitability, bookstore profitability, limited shelf space in bookstores and libraries, etc. — is acceptable. (¶ 45) But:
  • You cannot simultaneously take away authors' rights in doing so. (¶ 45) The authors' rights control over cultural and informational "imperatives," however important they are to the interests of the State. (¶¶ 29–34, 52)
  • You may designate a collecting society for administrative convenience, but such a society does not have authority to give permission for republication. (¶¶ 35, 48)
  • The publisher of a print edition does not inherently have the right to either approve or block a digital edition (¶¶ 47–49, 51), presumably (the Court is silent here) depending on specific contractual terms and not on assumptions embedded in general legislation.
  • You must give authors specific prior notice (¶¶ 38–39), act only upon formal approval (even if implicit) (¶¶ 35–37), and without needless formalities or artifical barriers (¶¶ 51) or requiring a non-author's acquiescence regarding this choice (id.).

Needless to say, this is a very pro-author decision. It is imperfect, as it fails to engage with the obvious problem of coauthors (for a work written by three individuals, how many must assent?), let alone who has the right to deal with a collective work (who can assent for, say, The Science Fiction Hall of Fame, Volume I, consisting of protectable works by 27 authors including the editorial matter) or a joint work published under a single authorial identity (e.g., Ellery Queen, James S.A. Corey). It will, no doubt, result in endless gnashing of teeth from those frustrated by books they "want right now" remaining out of print and not digitized, but the Court's answer to that is that the author's rights are paramount against the concerns of others (¶ 52).

What I expect to happen next, though, is another attempt to end-run around this problem. This is fundamentally the same problem as raised by the Google Books matters, if different enough in facts and law that the answers don't look all that compatible. And for some kinds of things, there's a legitimate claim of cultural priority over the resistance of authors' heirs (e.g., works that remain out of print because the authors' heirs — for whatever reason, but most-commonly religious — disagree with their content, such as those of John M. Ford). The mechanism will be important, and there's a gaping hole in the CJEU's reasoning: Voluntary membership in SOFIA might be construed as a delegation of the right to assent for this purpose, if that were part of the formal disclosures provided to an author upon joining. (Involuntary-membership circumstances such as the bumbling Copyright Clearance Center — which purportedly operates only for shorter works in periodicals anyway — seem excluded by the Court's reasoning.)