 At the end of last month the French Parliament passed a new law enabling the digitalisation and commercial exploitation by a mandatory collective management society of out-of-commerce, 'unavailable' books, edited before 2001 but not sold anymore,  by a sort of a 'default setting'. The authors have 6 months to oppose the process if they whish to, after that the exploitation of their work will occur automatically under terms and conditions they would have not priory agreed with.
The draft comes from the Ministry of Culture and was somehow negotiated under kind of secrecy. The high advisory council for literary and artistic property - Le Conseil Supérieur de la Propriété Littéraire et Artistique (CSPLA)  who is taking part in the national discussions on the EU orphan works Directive proposal, was not informed of the preparatory work of this law. However the National Publishers Union (Syndicat National de l’Édition - SNE) and the Société des Gens De Lettre (SGDL, representing authors) did worked on it, and welcome the results in a common press release, also available in EN.
On a purely legal aspect, the law looks like an infringement of the French author's right. It seems the French government and its Parliamentarian majority did not properly take into account the particularities of the moral right that recognises the authors an inalienable paternity on their work, thus conditioning any kind of release, to their prior-consent, always. The rapporteur of the law at the French National Assembly, Hervé Gaymard, did simply ignore or were not aware of the distinction moral right/commercial right in preparatory meetings, where he was quoted as saying any right = commercial right. A collective of 500 French authors did warn the government that this law violates their moral rights but were not listened to.
What if the authors would like to release his/her unavailable work for free? The French law-makers didn't bother thinking of it, of course... Which makes the transition with the cultural aspect of the issue: Guillaume Champeau from Numerama, Â says it is an attempt from the French legislator to circumvent the effect of the orphan works directive proposal, that foresees the possibility for libraries and other cultural institutions to digitalise and diffuse orphan works in rather open conditions without having to pay rights, based on general cultural interest considerations. The French law would actually target, without saying it, the digitalisation and exploitation of orphan works, which would represent half of the 500,000 'unavailable' books inFrance.
For the French speaking Libre Software Users' Association AFUL, the law legalises real piracy and blocks the EU attempt to open access to culture and knowledge, see their comprehensive warnining.
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Is the law limited to works by French authors and first published in France? It's not clear from your posting, but AFUL appears to be saying just that, "a monopoly on the right to authorize or prohibit exploitation of all French books published in the 20th century that are out of commerce". If the law were to cover also works by foreign authors, say those first published abroad and later appearing in French translation which has gone out of print, things would get tricky indeed as it might be in conflict with the Berne Convention.
Another thing: Is this about (presumably printed) books only, or does the law cover other work types as well, such as art, music or movies? Would the MCMS get exclusive filming rights with respect to a novel that has yet to be filmed?
AFUL points out that France usually takes pride in promoting the author's moral rights (I understand that Victor Hugo once played a key role in the codification of said rights). It's indeed ironic if France will abandon its position in this regard, only to serve some private commercial interests.
What would it take to have this law overturned by the French constitutional council?
For a law to be appealed by a constitutional court, doesn't someone need to direct an appeal against it, I thought?
The law, to my knowledge, only extends to books because it's one a France's ways of making a point in the orphan works debate - by passing this law, they are now sort of undermining future solutions to the orphan works problem at a European level. Normally, we would want for the orphan works to become freely accessible for users or re-users and publishers, but this French solution clearly makes it so that the government is allowed to ask license fees for copyrights that they've expropriated.
France is not allowed, reasonably, to discriminate works of authors from other nations in accordance with obligations from international treaties. So this law must, therefore, reasonably, apply the same to all works, but presumably the subsequent licenses handed out by the French government will only cover the territory of France (since it is easier to geographically restrict the license agreement, which is under contract law, than the copyright itself, which is bound by international agreements).
The Berne Convention prohibits a signatory state from granting weaker protection to foreign authors than to its own nationals. However, it does not prohibit discrimination going the other way; it may for instance grant 70 years of protection to foreign works while domestic works only get 50 years. So, at least in theory I think the French government can confiscate the copyrights of its own nationals only without violating the Berne Convention. Since the copyright has only changed hands, but not expired, the French authors will still be able to exercise their old rights in any other country of the Berne Union.
I believe the French law, as you have described it above, is incompatible with Berne. The Convention doesn't go into detail on transfer of copyright, so I assume that in principle, any transfer must be voluntary on the part of the current copyright holder. For instance, it appears to follow from Article 2(6):
The requirement that the current copyright holder speaks up in due time in order to prevent a pending confiscation runs counter to the first sentence of Article 5(2):
We have already mentioned the moral rights, which are prescribed in Article 6bis(1), though I'm not convinced that the wording of the Convention is strong enough to be useful against an accurate reproduction of the original work merely made without the author's consent.
The Convention doesn't discuss orphan works in general, but it does mention anonymous and pseudonymous works, which in some sense may be considered orphans, as you can't easily identify the copyright holder in order to ask for a license. I find Article 15(3) relevant in this regard:
That is, even when the author is unknown to the public, the current publisher is merely allowed to protect and enforce his rights in his absence, but not to appropriate said rights from the author. It seems unreasonable that Berne would offer less protection to identified authors or copyright holders who have merely failed to exercise their rights for several years.
So, if the MCMS indeed were to lay its hands on some old French translation of Povel Ramel's song lyrics (what's Grynkorv in French; Saucisse repas?) I think Ramel's heirs would have a good case for finding France in violation of Berne. Do you have to be a French citizen in order to appeal to the Constitutional Council?
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