L'utilizzo delle opere fuori commercio

The article examines the discipline of out-of-commerce works introduced by Directive 790/2019 and now transposed in Italian copyright law. The discipline has been envisioned by the European legislator as having two components, i.e. a system of extended collective licensing (ECL) and a backstop exception where no ECL is available for a given category of works. In its first part, the article discusses the compatibility of both components with international obligations and primary legislation of the Union, with reference to the issues raised by the CJEU in case C-301/15 Soulier and Doke. It argues that, despite the ruling of the Court against the French law, the discipline introduced by the European legislator is likely to pass both the Berne Convention’s three-step test and the scrutiny of Article 17(2) of the EU Charter. The article then moves on to consider the theoretical justifications for the use of out-of-commerce works in copyright law. It first discusses a possible analogy with the doctrine of extinguishment of rights on the ground of non-use in property law and trade mark law, and explains why is such doctrine of limited application in copyright. A more convincing justification is provided by the Kantian argument of a right of the public to a transaction with the author: according to this argument, copyright law can limit the right of the author not to exploit commercially the work when there is a prevailing interest of the public to have access the the work without unnecessary practical impediments. Cultural institutions are the legitimate bastions and interpreters of such an interest. The article concludes with a detailed analysis of the Italian implementation of the out-of-commerce discipline. It identifies a critical issue with the way in which the discipline has been transposed in Italian law, namely the fact that it provides for an ELC system without backstop exception. This represents a clear case of wrong or incomplete transposition, possibly liable to be referred for a preliminary ruling to the interpretation of the CJEU.