|So Many Books, So Litle Time|
Wednesday, 9 September 2015
Is a Paper Book Sharing App Illegal Under French Law?
French startup Booxup has created an app allowing its users to borrow hard cover or paperback books from the libraries of other users. It launched its service last spring. This is how it works: a user uploads her library on Booxup, or, at least, the books she does not mind to lend, by scanning their bar codes. If a fellow user is interested in one of these books, he contacts her, and the two arrange the way the book will be provided to the borrower, from shipping to meeting at a café, as the site suggests (this is a French startup, after all).
But an agent of the Direction Générale de la Concurrence, de la Consommation et de la Répression des Fraudes (DGCCRF), the French consumer protection agency, recently visited the Booxup offices, apparently after a person working in the book industry, whose identity is unknown, contacted the DGCCRF to express concerns over this business model. Indeed, Booxup uses a sharing economy model, where users offer their property or services to others, either for a fee, like Airbnb, or Uber, or for free, such as Booxup.
Uber suspended its services in France in July after its services were found to be illegal by the French government, and the DGCCRF agent who visited Booxup had been in charge of the Uber case. Could such a fate await Booxup? It may depend on how its business model fits within French intellectual property law. Let’s examine some of it.
French law recognizes the droit de destination, which is right of the author to have the primary purpose of the work be respected. Under this theory, the author has the right to prevent certain uses of her work even after it is no longer her property. The droit de destination is a creation of legal experts, but has a legal base in several articles of the French Intellectual Property Code (IPC). One of these articles, Article L.131-3, provides that a transfer of authors’ rights is subject to each of the assigned rights being separately mentioned in the instrument of assignment, and that the scope and purpose (“son étendue et … sa destination”) of these assigned rights must be defined as to their place and duration. However, it is difficult to imagine an author negotiating in a contract that the purpose of subsequent assignments of his books is that there are never be to be borrowed, not to mention the impossibility of enforcing such a clause.
Another article of the French IPC, article L. 332-1 2° authorizes the seizures of copies of a work which have been “unlawfully used,” and article L. 335-3 of the same code provides that “any …dissemination of a work of the mind, by any means whatsoever, in violation of the author’s rights as defined and regulated by law “ is an infringement. However, it remains to be seen if the droit de destination theory could apply to a book-sharing business model [I don’t think so].
What about distribution rights? One of the founders of Booxup explained in an interview he had the idea of creating a paper books sharing app when looking as his well-stocked library: according to him, 95% of the books in people’s libraries are never read again. As such, our libraries can be seen as cemeteries of books. If we exhume one of them and lend it to someone, do we distribute it again? Article 4.1 of Directive of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society provides that Member States must provide authors, “in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.” However, France has not transposed this particular article, even though it has recognized the first sale exhaustion of such right in article L. 122-3-1 of the IPC: “Once the first sale of a work or copies of a work has been authorized by the author or his successors in the territory of a Member State of the European [Union] or another State party to the Agreement on the European Economic Area, the sale of the copies of this work cannot be prohibited in the Member States of the European [Union] and the States party to the Agreement on the European Economic Area.” It seems that Booxup would be legal under article L. 122-3-1.
What about libraries? French Intellectual Property Code also regulates libraries, as France finally transposed in 2003 Council Directive No. 92/100/EEC of 19 November 1992 on rental right and lending right. Article L. 133-1 of the French IPC provides that if “a work is subject to a publishing contract for its publication and distribution in a book form, the author may not object to the lending of copies of this publication by a library open to the public.” However, this creates a right for the author to be financially compensated. But Booxup is probably not a library open to the public under French law, as the French “bibliothèque accueillant du public” implies that the library welcomes/hosts the public, just as the Directive defines such libraries as “establishments which are accessible to the public, and so article L. 133-1 is probably not applicable.
It is interesting to see an example of the new sharing economy challenging IP laws, especially as Booxup, while a French company, boasts users from all over the world. Do readers know of similar programs in their own countries?