The Eloquent Silence of Soulier and Doke and Its Critical Implications for EU Copyright Law

Abstract

On November 16, 2016, the CJEU released its judgment in Soulier-Doke (C-301/15), declaring the incompatibility with EU law of the French legislation setting up a non-voluntary collective management scheme for the digitization of out-of-commerce books. The decision follows AG Wathelet’s conclusions, yet founding its resolution on partly different grounds, and omitting several of the Opinion’s arguments, which could have opened the gate to unintended consequences on a number of national collective management experiments. This article provides an overview of the background of the case, analyses and comments on the main arguments and problematic implications of the AG Opinion, compares them with the CJEU’s final judgment, and concludes by assessing the potential impact of the decision.

Keywords: Out-Of-Commerce Works, Orphan Works, Extended Collective Licensing, Collective Management, Express Consent, Right of Reproduction, Right of Communication to the Public, Mass Digitization, Exceptions, Limitations

JEL Classification: K11, O34