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France: Law on Digital Exploitation of Unavailable Books

(Mar. 26, 2012) France's Law 2012-287, of March 1, 2012, on the Digital Exploitation of 20th Century Unavailable Books, was published in France's official gazette of March 2, 2012. (LOI n° 2012-287 du 1er mars 2012 relative à l'exploitation numérique des livres indisponibles du xxe siècle, LEGIFRANCE.)

This Law adds a new chapter to the French Intellectual Property Code, comprising articles L.134-1 to L.134-9. Article L. 134-1 provides that an unavailable book is “a book published in France before January 1, 2001, which is commercially unavailable and is not currently published in paper or digital format.” (Id.) The Law creates a public database specifically dedicated to unavailable books, accessible at no charge, which will list these titles. The Bibliothèque Nationale de France (French National Library) will oversee the implementation and updates of the database. Any individual will be able to request that the National Library register an unavailable book in the database (art. L.134-2).

After a book has been registered in the database for six months without any opposition, a collective management society approved by the Ministry of Culture will be authorized to grant a publisher a non-exclusive license for digital exploitation of the book for a period of five years, which will be renewable (art. L.134-3). The publisher will have to accept the license within two months of notification of its having been granted (art. L.134-5).

Both the author and the publisher who holds the right to reproduce the book in its print format may oppose the collective management society authorization to grant a right of reproduction. The opposition is noted in the database. The publisher who notifies the authorities of its opposition is obliged to exploit the book for the two years following the date of opposition (art. L. 134-4). After the expiration of the six-month period following the listing of a work in the database, the author of the book may only oppose its digital reproduction if his or her honor or reputation is at stake (id).

Both the author and the publisher who holds the right to reproduce the book may at any time jointly notify the collective management society that they are taking back the right to authorize the reproduction of the book, if that author or publisher wants to exploit it. However, their decision will not void the licenses already granted (art. L. 134-6).

In addition, the Law provides an exception for libraries. It states that the collective management society must authorize libraries that are accessible to the public to digitally reproduce at no cost and distribute to their patrons unavailable books, where a holder of the right to reproduce the work in its paper format has not been found within ten years of the first authorization to reproduce, provided that the library does not receive any commercial profit. If the collective management society refuses to grant such a right, it has to state the grounds for that refusal (art. L.134-8). The holder of the right to reproduce the work in its paper format may at any time request that the collective management society withdraw the right granted to a library (id).

Finally, the Law defines an orphan work as a protected and disclosed work for which the right holder cannot be identified or located despite diligent and serious research. If a work has several right holders and one of them has been identified, the work is not an orphan work (art. L. 113-10).