Decision of December 20, 2023 giving formal notice to Thomas Editions

The French regulatory authority for audiovisual and digital communication,

Having regard to the French intellectual property code, in particular the 7° of its article L.122-5 and its articles L.122-5-1, L. 122-5-2, L.331-31 and R.122-19 ;

Having regard to the order of May 23, 2017 establishing the list of formats facilitating the production of adapted documents, in particular article 1;

Having regard to the letters dated July 25, September 18 and November 13, 2023 from the French regulatory authority for audiovisual and digital communication ;

Having regard to the e-mail from the Bibliothèque nationale de France dated February 8, 2023;

Considering the following:

On the legal manager

1. Firstly, under the provisions of article L.331-31 of the French intellectual property code (French intellectual property code), the French regulatory authority for audiovisual and digital communication may, in particular, as part of its role in facilitating access by people with disabilities to works protected by copyright or neighboring rights, give formal notice to publishers to comply with the obligations set out in 2° of article L. 122-5-1 of the French intellectual property code.

2. Secondly, under the provisions of article L. 122-5 of the French intellectual property code: "When the work has been disclosed, the author may not prohibit: [...] 7° Dans les conditions prévues aux articles L.122-5-1 and L. 122-5-2, the reproduction and representation by artificial persons and by establishments open to the public, such as libraries, archives, documentation centers and multimedia cultural spaces, with a view to strictly personal browsing of the work by persons suffering from one or more impairments of motor, physical, sensory, mental, cognitive or psychic functions and prevented, by reason of these impairments, from accessing the work in the form in which the author makes it available to the public";

3. Thirdly, according to article L.122-5-1 of the French intellectual property code: "The reproduction and representation mentioned in the first paragraph of 7° of article L. 122-5 are ensured, for non-profit purposes and to the extent required by the handicap, under the following conditions: [...]

1°Reproduction and representation are provided by artificial persons or establishments appearing on a list drawn up jointly by the ministers responsible for culture and disabled persons. [...] ;

2° Reproduction and representation may also concern any work whose digital file is deposited by the publisher, in a format facilitating the production of adapted documents, with the Bibliothèque nationale de France, which makes it available to the legal persons and establishments on the list mentioned in 1° of this article and approved for this purpose."

For the application of this 2° :
[...].

b) This deposit is compulsory for publishers:

-with regard to school books, for those whose legal deposit or publication in Ebook form, within the meaning of law no. 2011-590 of May 26, 2011 on the price of digital books, are subsequent to January 1, 2016, no later than the day on which they are made available to the public;
-for other works, at the request of one of the artificial persons and establishments mentioned in the same 1°, made within ten years of the legal deposit of printed works when this is subsequent to August 4, 2006, or when works are published in the form of an Ebook, within the meaning of the aforementioned law n° 2011-590 of May 26, 2011".

4. Fourthly, according to article R.122-19 of the French intellectual property code:

"The publisher shall transmit the digital file of a work to the Bibliothèque nationale de France within forty-five days of being requested to do so by the latter."

On the breaches observed

5. It is clear from the data communicated by the Bibliothèque nationale de France to the Authority by e-mail dated February 8, 2023 that, of the five requests to deposit digital files of works made under the provisions of 2° of article L.122-5-1 of the French intellectual property code between 2018 and 2019, THOMAS EDITIONS did not comply with three of them, concerning the following works: "Comment faire dodo quand on n'a pas envie de faire dodo mais qu'on doit faire dodo quand même qu'on n'a pas très très envie de faire dodo" (EAN 13: 9782354810825), "Une ombre au tableau" (EAN 13: 9782354814045) and "Un parfum de mystère" (EAN 13: 9782354814359).

6 By letters dated July 25 and September 18, 2023, the Authority remindedTHOMAS EDITIONS of its obligation under article L.122-5-1 2° of the French intellectual property code to deposit the digital file of any work in a format that facilitates the production of suitable documents, with the Bibliothèque nationale de France, and summoned it to a hearing on Monday October 16, 2023 at 10:30 a.m. at the Authority's headquarters to discuss the means for implementing this obligation. The publisher did not attend the hearing, nor did it reply to the Authority's letters.

7 In a letter dated November 13, 2023, the Authority asked THOMAS PUBLISHINGS, within two weeks, for its observations on the lack of response to the requests made under the provisions of 2° of article L.122-5-1 of the French intellectual property code between 2018 and 2019, and reminded it of the provisions of article L. 331-31 of the French intellectual property code, under which it could give THOMAS PUBLISHINGS formal notice to comply with the obligations relating to the deposit of digital files of any work in a format facilitating the production of adapted documents, with the Bibliothèque nationale de France.

8. THOMAS EDITIONS has not replied to this letter.

9 Since, in disregard of the provisions of 2° of article L. 122-5-1 of the French intellectual property code, THOMAS PUBLISHINGS has not deposited with the Bibliothèque nationale de France the digital files of the following works: "Comment faire dodo quand on n'a pas envie de faire dodo mais qu'on doit faire dodo quand même alors qu'on n'a pas très très envie de faire dodo" (EAN 13 : 9782354810825), "Une ombre au tableau" (EAN 13: 9782354814045) and "Un parfum de mystère" (EAN 13: 9782354814359), and has given no reason for this failure, it is appropriate to issue the present formal notice. It is also appropriate, in the circumstances of this case, to publish this decision in the Journal officiel de la République française and on the Autorité's website.

After deliberation,

Decides :

Art. 1. - THOMAS PUBLISHINGS is hereby ordered, firstly, to deposit with the Bibliothèque nationale de France the digital files of the following works: "Comment faire dodo quand on n'a pas envie de faire dodo mais qu'on doit faire dodo quand même alors qu'on n'a pas très envie de faire dodo" (EAN 13 : 9782354810825), "Une ombre au tableau" (EAN 13: 9782354814045) and "Un parfum de mystère" (EAN 13: 9782354814359) within one month of notification of this decision and, secondly, to comply in future with the obligations arising from the provisions of 2° of article L.122-5-1 of the French intellectual property code.

Art. 2 - The present decision will be notified to THOMAS PUBLISHINGS and published in the Journal officiel de la République française and on the Authority's website.

Paris, December 20, 2023

For the French regulatory authority for audiovisual and digital communication :

Chairman,

R.-O. MAISTRE