Court of Appeal of Versailles (12th Chamber), 7 June 2007, n°06/01686 (obs. Costes L., in RLDI 2007/33, n°1100)
In 2002 Gaumont commercialized a DVD of the film Spiderman, in a specially designed package, presented as a limited edition for collectors. The packaging consisted of a wooden box containing a double DVD, a figurine representing Spiderman, a sketch-book…
M. J. created this packaging and Mastery took care of its production and marketing, while MPO was only in charge of manufacturing it. Subsequently, MPO published a photograph of the Spiderman package on its website, on a page dedicated to its ‘packaging creations’. M. J. and Mastery took action against MPO on the grounds of copyright infringement and unfair competition.
MPO argued that under copyright law the litigious packaging was not original, as it was merely a reproduction of boxes that had been drawn by the author of the Spiderman comic strips.
The Court of Appeal of Versailles ruled that a package designed and created for a specific product is a work as defined by the Intellectual Property Code and therefore qualifies for copyright protection. The Court condemned MPO for copyright infringement.
BRAD SPITZ
www.en.bradspitz.com
IPIT NEWS FROM FRANCE, by YS Avocats law firm, www.ys-avocats.com
Monday, 24 December 2007
Thursday, 20 December 2007
A Newsgroup Defined as Being a Hosting Provider
Court of Appeal of Versailles (14th Chamber), 12 December 2007, Les Arnaques.com v Editions Régionales de France
Editions Régionales de France (ERF) is a communications agency which specialises in the sales of advertising space and publishing of professional directories. It considered that newsgroups of the website Lesarnaques.com (literally The swindles.com), dedicated to helping consumers air their disputes, contained serious allegations against it.
In a summary proceeding, ERF obtained an order against the company Lesarnaques.com to suspend all reference to ERF on the site. Lesarnaques.com lodged an appeal against the summary order.
The Court of Appeal of Versailles ruled that a newsgroup that is used to send messages online, without any prior monitoring, is a hosting provider in the meaning of the French Act of 21 June 2004 on Confidence in the Digital Environment. As such, Lesarnaques.com may be liable under Article 6-1-2 of the French Act of 21 June 2004 on Confidence in the Digital Environment, which provides that the hosting provider is not liable for the information stored at the request of a recipient of the service, if the provider did not have actual knowledge of illegal activity or information, or if the provider, upon obtaining such knowledge, acted expeditiously to remove the information, or to disable access to it.
However, the Court ruled that under Article 6-I-5 of the Act of 21 June 2004, hosting providers are deemed to have knowledge of the litigious facts if they have been notified of certain elements, in particular the description of the litigious facts and their precise location, and the reasons why the content must be removed, with an explanation of the legal provisions and factual justifications. In the present case, the Court considered that the ERF had not sent the required notifications, and dismissed ERF’s claims.
http://www.legalis.net
BRAD SPITZ
www.en.bradspitz.com
Editions Régionales de France (ERF) is a communications agency which specialises in the sales of advertising space and publishing of professional directories. It considered that newsgroups of the website Lesarnaques.com (literally The swindles.com), dedicated to helping consumers air their disputes, contained serious allegations against it.
In a summary proceeding, ERF obtained an order against the company Lesarnaques.com to suspend all reference to ERF on the site. Lesarnaques.com lodged an appeal against the summary order.
The Court of Appeal of Versailles ruled that a newsgroup that is used to send messages online, without any prior monitoring, is a hosting provider in the meaning of the French Act of 21 June 2004 on Confidence in the Digital Environment. As such, Lesarnaques.com may be liable under Article 6-1-2 of the French Act of 21 June 2004 on Confidence in the Digital Environment, which provides that the hosting provider is not liable for the information stored at the request of a recipient of the service, if the provider did not have actual knowledge of illegal activity or information, or if the provider, upon obtaining such knowledge, acted expeditiously to remove the information, or to disable access to it.
However, the Court ruled that under Article 6-I-5 of the Act of 21 June 2004, hosting providers are deemed to have knowledge of the litigious facts if they have been notified of certain elements, in particular the description of the litigious facts and their precise location, and the reasons why the content must be removed, with an explanation of the legal provisions and factual justifications. In the present case, the Court considered that the ERF had not sent the required notifications, and dismissed ERF’s claims.
http://www.legalis.net
BRAD SPITZ
www.en.bradspitz.com
Tuesday, 18 December 2007
Google liable for hosting a blog
Court of Appeal of Paris (14th Chamber, Section A), 12 December 2007, Google Inc. v Benetton, Bencom
The American company Google Inc. hosts blogs on the Internet. The Benetton Group and Bencom manufacture and commercialize ready-to-wear clothes. The Benetton Group is the parent company, and Bencom the owner of the group’s trademarks.
Photographs from their catalogues and certain of their trademarks were reproduced by a certain “Angela B.” on two blogs, who claimed that he/she worked for Benetton in order to get women to send photographs of themselves in swimsuits or underwear. One blog was hosted by Microsoft, the other by Google Inc.
Benetton and Bencom first sent formal notices to Angel B.’s email address, which appeared on the blogs. As these notices had no effect, the plaintiffs wrote to Microsoft and Google to ask them to block all access to the blogs. Only Microsoft accepted.
At the beginning of May 2007, Benetton and Bencom brought the case before the President of the High Court of First Instance of Paris. In a summary order dated 29 May 2007, the President ordered Google Inc. to disable all access to the litigious blog, and condemned it to pay provisional damages to the plaintiffs.
On 8 June 2007, Google Inc. lodged an appeal and the litigious blog became inaccessible on either June 6 or June 8.
In its decision dated 12 December 2007, the Court of Appeal of Paris ruled that Google Inc. acted as a hosting provider and not as a publisher. The Court recalls that under the provisions of the Act of 21 June 2004 on Confidence in the Digital Environment, a hosting provider is not liable for the information stored at the request of a recipient of the service, if the provider did not have actual knowledge of illegal activity or information, or if the provider, upon obtaining such knowledge, acted expeditiously to remove or disable access to the information.
The Court noted that on 3 May 2007, after the summons had been served on Google Inc., the plaintiffs communicated to the defendant the evidence that was intended to be used at the trial. This evidence established the plaintiff’s rights and trademarks and under what conditions the photographs and trademarks had been reproduced.
The Court ruled that Google Inc. had knowledge of the illegal content when it received the plaintiff’s evidence, and that it should have promptly disabled all access to the content, without waiting for the first judge’s ruling. Google Inc. had only removed the blog on June 6 or 8, 2007, and was therefore held liable.
http://www.legalis.net
BRAD SPITZ
www.en.bradspitz.com
The American company Google Inc. hosts blogs on the Internet. The Benetton Group and Bencom manufacture and commercialize ready-to-wear clothes. The Benetton Group is the parent company, and Bencom the owner of the group’s trademarks.
Photographs from their catalogues and certain of their trademarks were reproduced by a certain “Angela B.” on two blogs, who claimed that he/she worked for Benetton in order to get women to send photographs of themselves in swimsuits or underwear. One blog was hosted by Microsoft, the other by Google Inc.
Benetton and Bencom first sent formal notices to Angel B.’s email address, which appeared on the blogs. As these notices had no effect, the plaintiffs wrote to Microsoft and Google to ask them to block all access to the blogs. Only Microsoft accepted.
At the beginning of May 2007, Benetton and Bencom brought the case before the President of the High Court of First Instance of Paris. In a summary order dated 29 May 2007, the President ordered Google Inc. to disable all access to the litigious blog, and condemned it to pay provisional damages to the plaintiffs.
On 8 June 2007, Google Inc. lodged an appeal and the litigious blog became inaccessible on either June 6 or June 8.
In its decision dated 12 December 2007, the Court of Appeal of Paris ruled that Google Inc. acted as a hosting provider and not as a publisher. The Court recalls that under the provisions of the Act of 21 June 2004 on Confidence in the Digital Environment, a hosting provider is not liable for the information stored at the request of a recipient of the service, if the provider did not have actual knowledge of illegal activity or information, or if the provider, upon obtaining such knowledge, acted expeditiously to remove or disable access to the information.
The Court noted that on 3 May 2007, after the summons had been served on Google Inc., the plaintiffs communicated to the defendant the evidence that was intended to be used at the trial. This evidence established the plaintiff’s rights and trademarks and under what conditions the photographs and trademarks had been reproduced.
The Court ruled that Google Inc. had knowledge of the illegal content when it received the plaintiff’s evidence, and that it should have promptly disabled all access to the content, without waiting for the first judge’s ruling. Google Inc. had only removed the blog on June 6 or 8, 2007, and was therefore held liable.
http://www.legalis.net
BRAD SPITZ
www.en.bradspitz.com
Sunday, 9 December 2007
A small adds website ordered to screen its content
Commercial Court of Paris, Summary Order, 31 October 2007, Kenzo and others v DMIS
Several companies of the group LVMH (Christian Dior, Givenchy, Guerlain, Kenzo) brought a case before the President of the Commercial Court of Paris against DMIS, the publisher of the website Vivastreet. This website, specialised in small adds, contained adds published by private individuals for the sale of perfumes outside the plaintiffs’ selective distribution network. The plaintiffs asked the President of the Court, acting as a summary jurisdiction for urgent matters, to order measures to stop these acts.
The plaintiffs acted on the grounds of Articles 6-I-7 of the French Act of 21 June 2004 on Confidence in the Digital Environment, which allows the judge to request the access and hosting providers to implement specific and temporary surveillance of their site, and Article 6-I-8, which provides that the judge may order any measure to prevent or stop damages caused or likely to be caused by the content of an online communication to the public.
In a summary order dated 26 July 2007, the President of the Commercial Court ordered the deletion of the litigious adds (http://www.legalis.net/breves-article.php3?id_article=2070). He also ordered the implementation of an upstream screening system to detect and block adds containing the trademarks of the plaintiffs for a period of six months. The President also ordered the publication of a warning on the home page of the site for one month.
However, a few months later, the plaintiffs discovered that there were still adds containing their trademarks on the same website, and considered that the defendant had not correctly executed the decision. They brought the case before the same Court.
In a summary order dated 31 October 2007, the President maintained his summary injunction concerning the screening and monitoring obligation, even though the defendant argued that it was developing an efficient software due for 15 January 2008 (http://www.legalis.net/jurisprudence-decision.php3?id_article=2074).
The judge also ordered the defendant to publish a warning again.
This decision offers an interesting application of Article 6-I-8 of the Act on Confidence in the Digital Environment, which allows the victim of an illegal content to ask the judicial authority to implement summary measures in order to prevent damages relating to illegal contents. In the Google Video case, the High Court of First Instance of Paris ruled that once notified that there is illegal content on their sites, the hosting providers have a general obligation to monitor their site in order to make sure that the content in question does not reappear on their site (see our post: http://copyrightfrance.blogspot.com/2007/11/google-video-held-liable-for-not-doing.html ). Article 6-I-8 may constitute a better solution, as the judge will order specific measures to be implemented during a specified time frame.
BRAD SPITZ
www.bradspitz.com
Several companies of the group LVMH (Christian Dior, Givenchy, Guerlain, Kenzo) brought a case before the President of the Commercial Court of Paris against DMIS, the publisher of the website Vivastreet. This website, specialised in small adds, contained adds published by private individuals for the sale of perfumes outside the plaintiffs’ selective distribution network. The plaintiffs asked the President of the Court, acting as a summary jurisdiction for urgent matters, to order measures to stop these acts.
The plaintiffs acted on the grounds of Articles 6-I-7 of the French Act of 21 June 2004 on Confidence in the Digital Environment, which allows the judge to request the access and hosting providers to implement specific and temporary surveillance of their site, and Article 6-I-8, which provides that the judge may order any measure to prevent or stop damages caused or likely to be caused by the content of an online communication to the public.
In a summary order dated 26 July 2007, the President of the Commercial Court ordered the deletion of the litigious adds (http://www.legalis.net/breves-article.php3?id_article=2070). He also ordered the implementation of an upstream screening system to detect and block adds containing the trademarks of the plaintiffs for a period of six months. The President also ordered the publication of a warning on the home page of the site for one month.
However, a few months later, the plaintiffs discovered that there were still adds containing their trademarks on the same website, and considered that the defendant had not correctly executed the decision. They brought the case before the same Court.
In a summary order dated 31 October 2007, the President maintained his summary injunction concerning the screening and monitoring obligation, even though the defendant argued that it was developing an efficient software due for 15 January 2008 (http://www.legalis.net/jurisprudence-decision.php3?id_article=2074).
The judge also ordered the defendant to publish a warning again.
This decision offers an interesting application of Article 6-I-8 of the Act on Confidence in the Digital Environment, which allows the victim of an illegal content to ask the judicial authority to implement summary measures in order to prevent damages relating to illegal contents. In the Google Video case, the High Court of First Instance of Paris ruled that once notified that there is illegal content on their sites, the hosting providers have a general obligation to monitor their site in order to make sure that the content in question does not reappear on their site (see our post: http://copyrightfrance.blogspot.com/2007/11/google-video-held-liable-for-not-doing.html ). Article 6-I-8 may constitute a better solution, as the judge will order specific measures to be implemented during a specified time frame.
BRAD SPITZ
www.bradspitz.com
Thursday, 6 December 2007
French high court thumps Google Video
An interview of Brad Spitz in The Register on the Google Video case:
http://www.theregister.co.uk/2007/12/05/french_high_court_thumps_google_video/
Thursday, 29 November 2007
Google Video held liable for not doing all it could to stop the broadcasting of a film
High Court of First Instance of Paris (3rd Chamber, 2nd Section), 19 October 2007, Zadig Productions and others v Google Inc, Afa
Zadig Productions is the producer of a documentary called ‘Tranquillity Bay’. When Zadig discovered that its film was accessible on the Google Video website, it sent three formal letters of notice on 13 and 14 April 2006, to Google Inc, an American company incorporated in Delaware. In an email dated 15 April 2006, Google Inc informed Zadig that it had removed access to the documentary in question. However, the film was put on line on the site several times by other Internet users. Each time, the broadcasting was notified to Google Inc, who systematically removed the litigious content. However, Zadig considered that Google Inc had not taken all necessary steps to stop the broadcasting of the film, and sued the American company.
The High Court of First Instance of Paris (‘Tribunal de Grande Instance’) held that Google Inc is a hosting provider, and that as such it may be liable under Article 6-1-2 of the French Act of 21 June 2004 on Confidence in the Digital Environment, which provides that the hosting provider is not liable for the information stored at the request of a recipient of the service, if the provider did not have actual knowledge of illegal activity or information, or if the provider, upon obtaining such knowledge, acted expeditiously to remove or to disable access to the information.
The Court held that, with regard to the first broadcast, Google Inc complied with these provisions by expeditiously removing the film. However, as regards the following broadcasts, the Court considered that since Google Inc had already been notified of the illegal nature of the content, it had the obligation to do everything necessary in order to prevent a further broadcast. The Court ruled that Google Inc did not prove that it had implemented such means, as the technical means that Google Inc alleged it had developed had manifestly been ineffective in the present case. The defendant could not therefore benefit from the liability limitation provided by Article 6-1-2 of the 2006 Act, and was condemned for copyright infringement: 25.000 euros for the violation of the patrimonial rights, and 5.000 euros for the violation of the moral rights of the author.
The crux of the decision is that once the hosting providers have been notified of illegal content, they are obliged to make sure that it does not reappear on their site. This places them in a difficult situation once they have been notified. Indeed, simply removing the notified content will not be enough to benefit from the liability limitation of Article 6-1-2 (the same limitation is provided for in the Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services and in the US Digital Millenium Copyright Act (DMCA)). Where the hosting provider is informed of the existence of an illegal content, it will either have to implement all necessary means to prevent a further user from putting the same content on line, or be able to prove that effective means were implemented in order to prevent such content being placed on the site. Hosting providers (such as Youtube and Dailymotion) will therefore have to develop technical means capable of searching specific content. Right owners might want to use the notification system for all their content in order to make sure the hosting providers will do the best they can to remove the litigious content as soon as it is put on line, and/or be held liable for copyright infringement if they fail to do so.
Further, the decision concerning the infringement of the moral rights of the author in the present judgement is note worthy. The Court ruled that the paternity right (the right of the author to be identified as such) was violated, as the identification elements of the documentary in question on the service Google Video did not contain any identification relating to the co-authors. Moreover, the Court ruled that Google Inc violated the author’s right of integrity (referred to under UK copyright law as the right to object to derogatory treatment), since the ‘streaming’ means used to broadcast the documentary only allow a very poor quality visualisation (this was already ruled in another decision: High Court of First Instance of Paris, Summary Order, 22 June 2007, see our post: (http://copyrightfrance.blogspot.com/2007/07/dailymotion-hosting-provider-liable-for.html).
BRAD SPITZ
www.bradspitz.com
Zadig Productions is the producer of a documentary called ‘Tranquillity Bay’. When Zadig discovered that its film was accessible on the Google Video website, it sent three formal letters of notice on 13 and 14 April 2006, to Google Inc, an American company incorporated in Delaware. In an email dated 15 April 2006, Google Inc informed Zadig that it had removed access to the documentary in question. However, the film was put on line on the site several times by other Internet users. Each time, the broadcasting was notified to Google Inc, who systematically removed the litigious content. However, Zadig considered that Google Inc had not taken all necessary steps to stop the broadcasting of the film, and sued the American company.
The High Court of First Instance of Paris (‘Tribunal de Grande Instance’) held that Google Inc is a hosting provider, and that as such it may be liable under Article 6-1-2 of the French Act of 21 June 2004 on Confidence in the Digital Environment, which provides that the hosting provider is not liable for the information stored at the request of a recipient of the service, if the provider did not have actual knowledge of illegal activity or information, or if the provider, upon obtaining such knowledge, acted expeditiously to remove or to disable access to the information.
The Court held that, with regard to the first broadcast, Google Inc complied with these provisions by expeditiously removing the film. However, as regards the following broadcasts, the Court considered that since Google Inc had already been notified of the illegal nature of the content, it had the obligation to do everything necessary in order to prevent a further broadcast. The Court ruled that Google Inc did not prove that it had implemented such means, as the technical means that Google Inc alleged it had developed had manifestly been ineffective in the present case. The defendant could not therefore benefit from the liability limitation provided by Article 6-1-2 of the 2006 Act, and was condemned for copyright infringement: 25.000 euros for the violation of the patrimonial rights, and 5.000 euros for the violation of the moral rights of the author.
The crux of the decision is that once the hosting providers have been notified of illegal content, they are obliged to make sure that it does not reappear on their site. This places them in a difficult situation once they have been notified. Indeed, simply removing the notified content will not be enough to benefit from the liability limitation of Article 6-1-2 (the same limitation is provided for in the Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services and in the US Digital Millenium Copyright Act (DMCA)). Where the hosting provider is informed of the existence of an illegal content, it will either have to implement all necessary means to prevent a further user from putting the same content on line, or be able to prove that effective means were implemented in order to prevent such content being placed on the site. Hosting providers (such as Youtube and Dailymotion) will therefore have to develop technical means capable of searching specific content. Right owners might want to use the notification system for all their content in order to make sure the hosting providers will do the best they can to remove the litigious content as soon as it is put on line, and/or be held liable for copyright infringement if they fail to do so.
Further, the decision concerning the infringement of the moral rights of the author in the present judgement is note worthy. The Court ruled that the paternity right (the right of the author to be identified as such) was violated, as the identification elements of the documentary in question on the service Google Video did not contain any identification relating to the co-authors. Moreover, the Court ruled that Google Inc violated the author’s right of integrity (referred to under UK copyright law as the right to object to derogatory treatment), since the ‘streaming’ means used to broadcast the documentary only allow a very poor quality visualisation (this was already ruled in another decision: High Court of First Instance of Paris, Summary Order, 22 June 2007, see our post: (http://copyrightfrance.blogspot.com/2007/07/dailymotion-hosting-provider-liable-for.html).
BRAD SPITZ
www.bradspitz.com
Monday, 5 November 2007
Wikipedia French Case: hosting providers do not have the obligation to monitor content
High Court of First Instance of Paris, Summary Order, 29 October 2007, Mrs M.B., Mr P.T. and Mr F.D. v Wikimedia Foundation Inc.
Three Frenchmen, who were quoted in the WIKIPEDIA website as being gay, brought action before the President of the High Court of First Instance of Paris, competent for urgent matters. They claimed damages on the grounds of violation of their privacy and defamation.
The Wikimedia Foundation argued that it is not subject to a general obligation to monitor the contents on its site, that it did not have actual knowledge of the litigious words, and that the plaintiffs did not notify the presence of the contents in compliance with the formalities provided for in the French Act of 21 June 2004 on Confidence in the Digital Environment (which implements the EC Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services). The litigious content was removed from the website before the hearings.
In its summary order dated 29 October 2007, the President ruled that the provisions of Article 6-I-2 Act on Confidence in the Digital Environment provide that hosting providers are not liable for the information stored, on condition that the providers did not have actual knowledge of illegal activity or information. Moreover, the President held that the provisions of Article 6.I.7 of the same Act do not provide for a general obligation to monitor information on their site, nor an obligation to actively seek facts or circumstances indicating illegal activities.
Furthermore, the President ruled that the plaintiffs had not given the Wikimedia Foundation notification of the litigious contents in compliance with the formalities set out in Article 6.I.5 of the Act of 21 June 2004. This article provides that service providers are deemed to have knowledge of the litigious facts if the following elements are notified:
- the date of the notification;
- the name of the person, profession, domicile, nationality, date and place of birth, or, in the case of a legal entity, its form of incorporation, name, registered office;
- the description of the litigious facts and their precise location;
- the reasons why the content must be removed, with an explanation of the legal provisions and factual justifications; and
- a copy of the correspondence sent to the author or publisher of the litigious information or facts, in which the author or publisher is asked to remove or modify the information, or failing that, justification that the author or publisher could not be contacted.
In the present case, the plaintiffs had sent an email, instead of a registered letter with acknowledgement of receipt. The email in question did not refer to the legal provisions needed by the recipient in order to verify whether the content was manifestly illegal.
http://www.juriscom.net/jpt/visu.php?ID=980
BRAD SPITZ
www.bradspitz.com
Three Frenchmen, who were quoted in the WIKIPEDIA website as being gay, brought action before the President of the High Court of First Instance of Paris, competent for urgent matters. They claimed damages on the grounds of violation of their privacy and defamation.
The Wikimedia Foundation argued that it is not subject to a general obligation to monitor the contents on its site, that it did not have actual knowledge of the litigious words, and that the plaintiffs did not notify the presence of the contents in compliance with the formalities provided for in the French Act of 21 June 2004 on Confidence in the Digital Environment (which implements the EC Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services). The litigious content was removed from the website before the hearings.
In its summary order dated 29 October 2007, the President ruled that the provisions of Article 6-I-2 Act on Confidence in the Digital Environment provide that hosting providers are not liable for the information stored, on condition that the providers did not have actual knowledge of illegal activity or information. Moreover, the President held that the provisions of Article 6.I.7 of the same Act do not provide for a general obligation to monitor information on their site, nor an obligation to actively seek facts or circumstances indicating illegal activities.
Furthermore, the President ruled that the plaintiffs had not given the Wikimedia Foundation notification of the litigious contents in compliance with the formalities set out in Article 6.I.5 of the Act of 21 June 2004. This article provides that service providers are deemed to have knowledge of the litigious facts if the following elements are notified:
- the date of the notification;
- the name of the person, profession, domicile, nationality, date and place of birth, or, in the case of a legal entity, its form of incorporation, name, registered office;
- the description of the litigious facts and their precise location;
- the reasons why the content must be removed, with an explanation of the legal provisions and factual justifications; and
- a copy of the correspondence sent to the author or publisher of the litigious information or facts, in which the author or publisher is asked to remove or modify the information, or failing that, justification that the author or publisher could not be contacted.
In the present case, the plaintiffs had sent an email, instead of a registered letter with acknowledgement of receipt. The email in question did not refer to the legal provisions needed by the recipient in order to verify whether the content was manifestly illegal.
http://www.juriscom.net/jpt/visu.php?ID=980
BRAD SPITZ
www.bradspitz.com
Thursday, 1 November 2007
The new French law on the enforcement of IP rights
L. n° 2007-1544, 29 October 2007: Official Journal 30 October 2007, p. 17775
The bill on the measures to fight infringement, which implements the Directives 2004/48/EC on the enforcement of intellectual property rights and 98/44/EC of 6 July 1998 on the legal protection of biotechnological inventions (see our commentary below ‘The French Senate voted a draft bill to implement the Directive on enforcement of IP rights’, also available at: http://juriscom.net/actu/visu.php?ID=968), was published in the Official Journal (L. n° 2007-1544, 29 October 2007: Official Journal 30 October 2007, p. 17775).
The new law concerns designs, patents, semi-conductors, trademarks and copyright. This law reinforces the protection of intellectual property creations. It introduces accelerated and simplified procedures to bring matters before court, in particular in order to obtain summary orders against the alleged infringer or his intermediaries so as to prevent imminent acts of infringement or to stop such acts. The law also reinforces the measures that can be ordered against infringers, and improves the remedies that can be awarded.
Moreover, the law provides for a limited number of courts to specialise in the enforcement of intellectual property: litigation relating to the application of intellectual property rules may only be brought before specific High Courts of First Instance (‘Tribunaux de Grande Instance’). The text provides that a Decree will set out these courts.
It should also be noted that the legislator reinforces the penal sanctions incurred where the acts of infringement concern products that are dangerous for the health and security of mankind and animals.
Finally, the law sanctions any violation of intellectual property rights, whether they are carried out on a commercial scale or not.
BRAD SPITZ
www.en.bradspitz.com
The bill on the measures to fight infringement, which implements the Directives 2004/48/EC on the enforcement of intellectual property rights and 98/44/EC of 6 July 1998 on the legal protection of biotechnological inventions (see our commentary below ‘The French Senate voted a draft bill to implement the Directive on enforcement of IP rights’, also available at: http://juriscom.net/actu/visu.php?ID=968), was published in the Official Journal (L. n° 2007-1544, 29 October 2007: Official Journal 30 October 2007, p. 17775).
The new law concerns designs, patents, semi-conductors, trademarks and copyright. This law reinforces the protection of intellectual property creations. It introduces accelerated and simplified procedures to bring matters before court, in particular in order to obtain summary orders against the alleged infringer or his intermediaries so as to prevent imminent acts of infringement or to stop such acts. The law also reinforces the measures that can be ordered against infringers, and improves the remedies that can be awarded.
Moreover, the law provides for a limited number of courts to specialise in the enforcement of intellectual property: litigation relating to the application of intellectual property rules may only be brought before specific High Courts of First Instance (‘Tribunaux de Grande Instance’). The text provides that a Decree will set out these courts.
It should also be noted that the legislator reinforces the penal sanctions incurred where the acts of infringement concern products that are dangerous for the health and security of mankind and animals.
Finally, the law sanctions any violation of intellectual property rights, whether they are carried out on a commercial scale or not.
BRAD SPITZ
www.en.bradspitz.com
Thursday, 25 October 2007
Copyright versus right to information
Cour de Cassation (1st Civil Chamber), 2 October 2007, n° 05-14.928
On 9 March 2005, the Court of Appeal of Paris (4th Chamber, Section A) ruled that the publisher Hachette Filipacchi committed acts of infringement in 1998 by reproducing the FIFA trophy on the cover of ‘Onze Mondial’, its French football magazine.
The Court of Appeal held that the copyright exception in Article L.122-5 of the Intellectual Property Code (‘IPC’), which provides that ‘analyses and short quotations justified by the critical, polemic, educational, scientific or informatory nature of the work in which they are incorporated’, was not applicable in this case, since the reproduction did concern the right to information.
Hachette Filipacchi lodged an appeal with the Cour de Cassation (the French Supreme Court for civil and criminal matters), which confirmed the Court of Appeal’s judgement. The Cour de Cassation considered that the right to information, as provided for in article 10 of the European Convention on Human Rights, is limited by other identically protected rights, such as intellectual property rights. As the Court of Appeal noted in its judgement, the reproduction of the trophy did not appear in a document of an informational nature but in a photomontage which symbolically illustrated the victory of the famous football players represented on the cover.
The Cour de Cassation therefore ruled that the litigious reproduction, which exceeded the mere reference to the current event in question, did not contribute to public information, and was therefore an unauthorised act of exploitation of the work.
In the present case, the Cour de Cassation struck a balance between the right to information and the rights of the rightholder. However, it appears from the rulings of the Court of Appeal of Paris and of the Cour de Cassation, that if the magazine had published information on the trophy itself in the same magazine, the reproduction would probably have been authorised by Article L.122-5 IPC, even if the publisher’s aim had only been to make the magazine more attractive (see D. Poracchia, “Trophée sportif, droit à l’information et courtes citations”, in Lamy Droit des Médias et de la Communication). In certain situations, it will be difficult to strike a balance…
BRAD SPITZ
www.en.bradspitz.com
On 9 March 2005, the Court of Appeal of Paris (4th Chamber, Section A) ruled that the publisher Hachette Filipacchi committed acts of infringement in 1998 by reproducing the FIFA trophy on the cover of ‘Onze Mondial’, its French football magazine.
The Court of Appeal held that the copyright exception in Article L.122-5 of the Intellectual Property Code (‘IPC’), which provides that ‘analyses and short quotations justified by the critical, polemic, educational, scientific or informatory nature of the work in which they are incorporated’, was not applicable in this case, since the reproduction did concern the right to information.
Hachette Filipacchi lodged an appeal with the Cour de Cassation (the French Supreme Court for civil and criminal matters), which confirmed the Court of Appeal’s judgement. The Cour de Cassation considered that the right to information, as provided for in article 10 of the European Convention on Human Rights, is limited by other identically protected rights, such as intellectual property rights. As the Court of Appeal noted in its judgement, the reproduction of the trophy did not appear in a document of an informational nature but in a photomontage which symbolically illustrated the victory of the famous football players represented on the cover.
The Cour de Cassation therefore ruled that the litigious reproduction, which exceeded the mere reference to the current event in question, did not contribute to public information, and was therefore an unauthorised act of exploitation of the work.
In the present case, the Cour de Cassation struck a balance between the right to information and the rights of the rightholder. However, it appears from the rulings of the Court of Appeal of Paris and of the Cour de Cassation, that if the magazine had published information on the trophy itself in the same magazine, the reproduction would probably have been authorised by Article L.122-5 IPC, even if the publisher’s aim had only been to make the magazine more attractive (see D. Poracchia, “Trophée sportif, droit à l’information et courtes citations”, in Lamy Droit des Médias et de la Communication). In certain situations, it will be difficult to strike a balance…
BRAD SPITZ
www.en.bradspitz.com
Wednesday, 24 October 2007
False description of an ‘audio CD’ that cannot be played on certain CD players
High Court of First Instance of Nanterre (15th Chamber), 31 May 2007, n° 331845026, Ministère public v EMI Music France
EMI Music France commercialised, between October 2002 and August 2003, CDs equipped with anti-copying measures. As these CD’s were commercialised under the name “Audio CD”, while they could not be played on certain CD players, two consumer associations took action against EMI Music France on the grounds of false description in relation to the nature and material qualities of the merchandise.
Indeed, Article L.213-1 of the French Consumer Code punishes anyone, whether or not they are party to the contract, who may have deceived or attempted to deceive the contractor in respect of the nature, species, origin, material qualities, composition or content in terms of useful principles of any merchandise.
The Tribunal de Grande Instance (High Court of First Instance) of Nanterre held that EMI Music France deceived the consumers by knowingly commercialising audio records presented as ‘audio CDs’, whereas these CDs were equipped with anti-copying measures and were therefore not in compliance with the French norm fixing the technical characteristics applicable to audio CDs at the time, and so could not be played on a certain number of CD players, in particular on car CD players.
BRAD SPITZ
www.bradspitz.com
EMI Music France commercialised, between October 2002 and August 2003, CDs equipped with anti-copying measures. As these CD’s were commercialised under the name “Audio CD”, while they could not be played on certain CD players, two consumer associations took action against EMI Music France on the grounds of false description in relation to the nature and material qualities of the merchandise.
Indeed, Article L.213-1 of the French Consumer Code punishes anyone, whether or not they are party to the contract, who may have deceived or attempted to deceive the contractor in respect of the nature, species, origin, material qualities, composition or content in terms of useful principles of any merchandise.
The Tribunal de Grande Instance (High Court of First Instance) of Nanterre held that EMI Music France deceived the consumers by knowingly commercialising audio records presented as ‘audio CDs’, whereas these CDs were equipped with anti-copying measures and were therefore not in compliance with the French norm fixing the technical characteristics applicable to audio CDs at the time, and so could not be played on a certain number of CD players, in particular on car CD players.
BRAD SPITZ
www.bradspitz.com
Monday, 15 October 2007
France: the remuneration for private copying extended to memory cards, USB keys and external hard disks
Decision of the Committee of Article L. 311-5 IPC, 9 July 2007
In France, the authors and performers of works fixed on phonograms or videograms, and the producers of such phonograms or videograms, are entitled to remuneration for private copying, in application of Article L. 311-1 of the Intellectual Property Code (“IPC”).
Article L. 311-4 IPC provides that this remuneration shall be paid by the manufacturer, the importer or the person making an intra-Community acquisition of recording mediums that may be used for reproduction of works for private use, at the time these mediums enter into circulation in France. The amount of the remuneration depends on the type of medium and the recording time it provides.
Pursuant to Article L. 311-5 IPC, the type of medium, the rates of remuneration and the conditions of payment of such remuneration are determined by a Committee chaired by a representative of the State and composed, in half, of persons designated by organisations representing the beneficiaries of the right of remuneration, in quarter, of persons designated by the organisations representing the manufacturers or importers of the mediums in question, and in quarter, of persons designated by the organisations representing the consumers.
In a Decision dated 9 July 2007 (Official Journal, 9 September 2007, p. 14860), the Committee of Article L. 311-5 IPC extended the list of recording mediums already subject to remuneration (amongst which Minidisc, audio CDR and CDR-RW, video DVD-R and DVD-RW…) to include memory cards, USB keys and external hard disks. The Commission also reduced the remuneration applicable to blank DVDs (DVD Ram, DVD-R and DVD RW) from 23,40 Euros to 21,70 Euros for 100 Go.
BRAD SPITZ
www.bradspitz.com
In France, the authors and performers of works fixed on phonograms or videograms, and the producers of such phonograms or videograms, are entitled to remuneration for private copying, in application of Article L. 311-1 of the Intellectual Property Code (“IPC”).
Article L. 311-4 IPC provides that this remuneration shall be paid by the manufacturer, the importer or the person making an intra-Community acquisition of recording mediums that may be used for reproduction of works for private use, at the time these mediums enter into circulation in France. The amount of the remuneration depends on the type of medium and the recording time it provides.
Pursuant to Article L. 311-5 IPC, the type of medium, the rates of remuneration and the conditions of payment of such remuneration are determined by a Committee chaired by a representative of the State and composed, in half, of persons designated by organisations representing the beneficiaries of the right of remuneration, in quarter, of persons designated by the organisations representing the manufacturers or importers of the mediums in question, and in quarter, of persons designated by the organisations representing the consumers.
In a Decision dated 9 July 2007 (Official Journal, 9 September 2007, p. 14860), the Committee of Article L. 311-5 IPC extended the list of recording mediums already subject to remuneration (amongst which Minidisc, audio CDR and CDR-RW, video DVD-R and DVD-RW…) to include memory cards, USB keys and external hard disks. The Commission also reduced the remuneration applicable to blank DVDs (DVD Ram, DVD-R and DVD RW) from 23,40 Euros to 21,70 Euros for 100 Go.
BRAD SPITZ
www.bradspitz.com
Tuesday, 2 October 2007
The French Senate voted a draft bill to implement the Directive on enforcement of IP rights
On 19 September 2007, the French Senate voted the parliamentary draft bill to fight infringement (‘Projet de loi de lutte contre la contrefaçon’, n° 135, http://ameli.senat.fr/publication_pl/2006-2007/226.html). This draft bill implements the Directive 2004/48/EC on the enforcement of intellectual property rights. The aim of the draft is in particular to reinforce the body of law to protect intellectual property creations, to create a right of information for intellectual property owners and to reinforce provisional and precautionary measures.
Three sets of provisions seem interesting to note.
1) The draft provides for a limited number of courts to specialise in the enforcement of intellectual property: litigation relating to the application of intellectual property rules may only be brought before specific High Courts of First Instance (‘Tribunaux de Grande Instance’). The text provides that a Decree will set out these courts amongst the 181 existing courts.
In the field of competition law, the absence of specialised courts for damages actions appeared to constitute a major procedural obstacle to the effective enforcement of competition law. The Law on the New Economic Regulations (‘Loi sur les Nouvelles Régulations Economiques’ - ‘Loi NRE’) of 15 May 2001 provided for the creation of specialised courts for the enforcement of competition law actions (Law n° 2001-420, published in the French Official Journal of 16 May 2001). Pursuant to Article L.420-7 of the French Commercial Code, as amended by the Loi NRE, litigation relating to the application of the domestic French competition rules contained in Articles L.420-1 to L.420-5 of the Commercial Code and the EC rules contained in Articles 81 and 82 EC Treaty, may only be brought before specific High Courts of First Instance and Commercial Courts (‘Tribunaux de Commerce’). The same idea prevails in the draft bill to fight infringement of intellectual property rights: the specialisation of the courts rationalises the training of the judges in the particular techniques of intellectual property law. These provisions also aim at making French territory an attractive legal jurisdiction. One may observe that for several years now, French procedure law has been tending towards specialisation in intellectual property cases (see for instance Article R. 631-2 of the Intellectual Property Code which designates seven High Courts of First Instance to hear cases relating to patents, utility certificates, supplementary protection certificates and certificates of topographies of semiconductor products).
2) The other interesting provisions concern the aspects that must be taken into account by the judicial authority in order to set the damages. These provisions are close (but not identical) to Article 13 of the Directive 2004/48/EC. The draft provides that to assess the damages, the court shall ‘take into consideration the negative economic consequences, including lost profits, which the injured party has suffered, the profits made by the infringer and the moral prejudice caused to the rightholder by the infringer’. The draft adds: ‘However, the court may, as an alternative, and if claimed by the injured party, set the damages as a lump sum which shall be at least the amount of royalties or fees which would have been due if the infringer had requested authorization to use the intellectual property in question’. Currently, under French law, the damages awarded by the courts must compensate the damages actually suffered and not constitute punitive sanctions. These provisions seem to introduce punitive damages into French intellectual property law. It should however be observed that the courts already tend to increase, sometimes considerably, the amount of such indemnities (see F. Siiriainen, ‘Propriété intellectuelle, préjudice et droit économique’, Colloque du 23 Mars 2001, à la Sorbonne, consacré aux "Sciences juridiques de l'économie? Un défi pour les économistes et juristes européens").
3) Finally, the draft removed the reference to acts carried out ‘on a commercial scale’, as this notion was considered to be dangerously imprecise, and since the courts will, in any case, adapt the sanctions according to the gravity of the infringement in question (see Rapport n° 420 (2006-2007) de M. L. Béteille, http://www.senat.fr/rap/l06-420/l06-420.html). The preamble of the Directive states that the ‘measures provided for in Articles 6(2), 8(1) and 9(2) need to be applied in respect of acts carried out on a commercial scale. This is without prejudice to the possibility for Member States to apply those measures also in respect of other acts’ (point 14).
The National Assembly (equivalent to the UK House of Commons or the US House of Representatives) will examine the draft bill in October 2007.
http://juriscom.net/actu/visu.php?ID=968
BRAD SPITZ
www.bradspitz.com
Three sets of provisions seem interesting to note.
1) The draft provides for a limited number of courts to specialise in the enforcement of intellectual property: litigation relating to the application of intellectual property rules may only be brought before specific High Courts of First Instance (‘Tribunaux de Grande Instance’). The text provides that a Decree will set out these courts amongst the 181 existing courts.
In the field of competition law, the absence of specialised courts for damages actions appeared to constitute a major procedural obstacle to the effective enforcement of competition law. The Law on the New Economic Regulations (‘Loi sur les Nouvelles Régulations Economiques’ - ‘Loi NRE’) of 15 May 2001 provided for the creation of specialised courts for the enforcement of competition law actions (Law n° 2001-420, published in the French Official Journal of 16 May 2001). Pursuant to Article L.420-7 of the French Commercial Code, as amended by the Loi NRE, litigation relating to the application of the domestic French competition rules contained in Articles L.420-1 to L.420-5 of the Commercial Code and the EC rules contained in Articles 81 and 82 EC Treaty, may only be brought before specific High Courts of First Instance and Commercial Courts (‘Tribunaux de Commerce’). The same idea prevails in the draft bill to fight infringement of intellectual property rights: the specialisation of the courts rationalises the training of the judges in the particular techniques of intellectual property law. These provisions also aim at making French territory an attractive legal jurisdiction. One may observe that for several years now, French procedure law has been tending towards specialisation in intellectual property cases (see for instance Article R. 631-2 of the Intellectual Property Code which designates seven High Courts of First Instance to hear cases relating to patents, utility certificates, supplementary protection certificates and certificates of topographies of semiconductor products).
2) The other interesting provisions concern the aspects that must be taken into account by the judicial authority in order to set the damages. These provisions are close (but not identical) to Article 13 of the Directive 2004/48/EC. The draft provides that to assess the damages, the court shall ‘take into consideration the negative economic consequences, including lost profits, which the injured party has suffered, the profits made by the infringer and the moral prejudice caused to the rightholder by the infringer’. The draft adds: ‘However, the court may, as an alternative, and if claimed by the injured party, set the damages as a lump sum which shall be at least the amount of royalties or fees which would have been due if the infringer had requested authorization to use the intellectual property in question’. Currently, under French law, the damages awarded by the courts must compensate the damages actually suffered and not constitute punitive sanctions. These provisions seem to introduce punitive damages into French intellectual property law. It should however be observed that the courts already tend to increase, sometimes considerably, the amount of such indemnities (see F. Siiriainen, ‘Propriété intellectuelle, préjudice et droit économique’, Colloque du 23 Mars 2001, à la Sorbonne, consacré aux "Sciences juridiques de l'économie? Un défi pour les économistes et juristes européens").
3) Finally, the draft removed the reference to acts carried out ‘on a commercial scale’, as this notion was considered to be dangerously imprecise, and since the courts will, in any case, adapt the sanctions according to the gravity of the infringement in question (see Rapport n° 420 (2006-2007) de M. L. Béteille, http://www.senat.fr/rap/l06-420/l06-420.html). The preamble of the Directive states that the ‘measures provided for in Articles 6(2), 8(1) and 9(2) need to be applied in respect of acts carried out on a commercial scale. This is without prejudice to the possibility for Member States to apply those measures also in respect of other acts’ (point 14).
The National Assembly (equivalent to the UK House of Commons or the US House of Representatives) will examine the draft bill in October 2007.
http://juriscom.net/actu/visu.php?ID=968
BRAD SPITZ
www.bradspitz.com
SMS messages may be used as evidence in court
Cour de Cassation (Social Chamber), 23 May 2007, SCP L.-A. et autre v Mme L. Y., n° 06-43.209
Ms Y. was dismissed from her employment for having committed a serious fault. She brought the case before the labour court (‘Conseil de prud’hommes’) challenging her dismissal and complaining about sexual harassment.
The Court of Appeal of Anger held that Ms Y. established that she had been harassed and condemned the employer to pay damages. Ms Y. used as evidence a telephone conversation, which was recorded without the knowledge of the person in question –Mr X.–, as well as SMS messages sent to her by Mr X. The employer and Mr X. challenged the admissibility of this means of evidence and appealed to the Cour de Cassation (the French Supreme Court for civil and criminal matters).
Before the Cour de Cassation, the employer and Mr X argued that since the recording was carried out without the knowledge of the person making the call, it constituted unfair means of proof rendering the evidence inadmissible in court. They therefore argued that the Court of Appeal, by using these elements to justify its judgement, violated Articles 9 of the Code of Civil Procedure (which provides that ‘Each party must prove, according to the law, the facts necessary for the success of his claim’) and 6 of the European Convention on Human Rights. As regards the SMS messages, Mr X. argued that he did not have the burden of proving that he was not the one who used the phone to send the messages.
Concerning the recording of a private conversation carried out without the knowledge of the person making the call, the Cour de Cassation held that it constitutes an unfair means and that such evidence is therefore inadmissible in court. However, the Supreme Court held that the person sending the SMS had to be aware that messages are stored in the phone of the recipient. The SMS was therefore an admissible means of proof.
The Supreme Court therefore approved the Court of Appeal for ruling that the written messages sent to the employee established the existence of harassment.
BRAD SPITZ
www.bradspitz.com
Ms Y. was dismissed from her employment for having committed a serious fault. She brought the case before the labour court (‘Conseil de prud’hommes’) challenging her dismissal and complaining about sexual harassment.
The Court of Appeal of Anger held that Ms Y. established that she had been harassed and condemned the employer to pay damages. Ms Y. used as evidence a telephone conversation, which was recorded without the knowledge of the person in question –Mr X.–, as well as SMS messages sent to her by Mr X. The employer and Mr X. challenged the admissibility of this means of evidence and appealed to the Cour de Cassation (the French Supreme Court for civil and criminal matters).
Before the Cour de Cassation, the employer and Mr X argued that since the recording was carried out without the knowledge of the person making the call, it constituted unfair means of proof rendering the evidence inadmissible in court. They therefore argued that the Court of Appeal, by using these elements to justify its judgement, violated Articles 9 of the Code of Civil Procedure (which provides that ‘Each party must prove, according to the law, the facts necessary for the success of his claim’) and 6 of the European Convention on Human Rights. As regards the SMS messages, Mr X. argued that he did not have the burden of proving that he was not the one who used the phone to send the messages.
Concerning the recording of a private conversation carried out without the knowledge of the person making the call, the Cour de Cassation held that it constitutes an unfair means and that such evidence is therefore inadmissible in court. However, the Supreme Court held that the person sending the SMS had to be aware that messages are stored in the phone of the recipient. The SMS was therefore an admissible means of proof.
The Supreme Court therefore approved the Court of Appeal for ruling that the written messages sent to the employee established the existence of harassment.
BRAD SPITZ
www.bradspitz.com
Tuesday, 11 September 2007
Protéger son image face à Street View
Interview de Brad Spitz dans Le Point du 6 septembre 2007
http://www.lepoint.fr/content/tendances/article?id=199518
BRAD SPITZ
www.bradspitz.com
Thursday, 30 August 2007
The extent of the authorisation given for the use of one’s image
Cour de cassation, 1st civil chamber, 14 June 2007, n° 06-13.601
Two children suffering from a serious neuromuscular disease, appeared in a French television programme called “Téléthon”, with the authorisation of their legal representative. The aim of the programme was to enable children to reveal their suffering in order to increase public awareness and raise funds for medical research. During the television programme a photo was taken of the two children in their wheelchairs and reproduced in a school book on sciences, with the following commentary: “Each year a television programme, Téléthon, gathers children suffering from hereditary diseases”.
The legal representative took action against the photo agency and the publisher of the book on the basis of the violation of their right to privacy and image. The Court of Appeal of Nîmes dismissed the action, ruling that the voluntary participation of sick persons in the television programme implies their acceptance to serve the cause and to have their image distributed as widely as possible, and that the litigious photo was not taken out of its original context. Furthermore, the Court considered that the photo did not degrade the children nor debase their personality. Finally, the Court noted that the publication of the photo in the book followed the same aim as the one that was initially intended by the children, i.e. information on the existence of such diseases.
The Cour de Cassation (French Supreme Court for civil and criminal matters) reversed and annulled the judgement of the Court of Appeal on the grounds of Article 9 of the Civil Code (‘Everyone has the right to respect for his private life.’) and Article 8-1 of the European Convention on Human Rights (‘Everyone has the right to respect for his private and family life, his home and his correspondence.’). The Supreme Court ruled that the litigious photo was used in a different context, and therefore required a specific authorisation from the persons concerned. Moreover, the Supreme Court considered that even though a study of public interest exempts the user from having to obtain such an authorisation, it does not necessarily imply that the persons concerned may be identified.
Under French law, every person has an exclusive right to his image. The courts interpret the authorisation given for the reproduction of one’s picture very strictly. The image of a person may not be reproduced in a different context from the one that was authorised, or for a different aim.
In the present case, the photo was used in a different context: a school book, whereas the authorisation was given for a television programme to be broadcast live one evening for the raising of funds for research. However, the aim of the book seems to be very close to the one followed by the television programme (see the commentary of L. Costes (in Lamy, Journal du Droit – Actualités, 2007).
BRAD SPITZ
www.bradspitz.com
Two children suffering from a serious neuromuscular disease, appeared in a French television programme called “Téléthon”, with the authorisation of their legal representative. The aim of the programme was to enable children to reveal their suffering in order to increase public awareness and raise funds for medical research. During the television programme a photo was taken of the two children in their wheelchairs and reproduced in a school book on sciences, with the following commentary: “Each year a television programme, Téléthon, gathers children suffering from hereditary diseases”.
The legal representative took action against the photo agency and the publisher of the book on the basis of the violation of their right to privacy and image. The Court of Appeal of Nîmes dismissed the action, ruling that the voluntary participation of sick persons in the television programme implies their acceptance to serve the cause and to have their image distributed as widely as possible, and that the litigious photo was not taken out of its original context. Furthermore, the Court considered that the photo did not degrade the children nor debase their personality. Finally, the Court noted that the publication of the photo in the book followed the same aim as the one that was initially intended by the children, i.e. information on the existence of such diseases.
The Cour de Cassation (French Supreme Court for civil and criminal matters) reversed and annulled the judgement of the Court of Appeal on the grounds of Article 9 of the Civil Code (‘Everyone has the right to respect for his private life.’) and Article 8-1 of the European Convention on Human Rights (‘Everyone has the right to respect for his private and family life, his home and his correspondence.’). The Supreme Court ruled that the litigious photo was used in a different context, and therefore required a specific authorisation from the persons concerned. Moreover, the Supreme Court considered that even though a study of public interest exempts the user from having to obtain such an authorisation, it does not necessarily imply that the persons concerned may be identified.
Under French law, every person has an exclusive right to his image. The courts interpret the authorisation given for the reproduction of one’s picture very strictly. The image of a person may not be reproduced in a different context from the one that was authorised, or for a different aim.
In the present case, the photo was used in a different context: a school book, whereas the authorisation was given for a television programme to be broadcast live one evening for the raising of funds for research. However, the aim of the book seems to be very close to the one followed by the television programme (see the commentary of L. Costes (in Lamy, Journal du Droit – Actualités, 2007).
BRAD SPITZ
www.bradspitz.com
Wednesday, 22 August 2007
The City of Paris stops the use of its name as a trademark and domain name
High Court of First Instance of Paris (3rd Chamber, 2nd Section), 6 July 2007 http://juriscom.net/jpt/visu.php?ID=954
http://juriscom.net/jpt/visu.php?ID=954
The City of Paris brought an action before the High Court of First Instance of Paris against an association that registered under the name ‘Paris-Sans Fil’ (‘Wireless Paris’). The association had registered the trademark ‘Paris-Sans Fil’ in the classes 35, 38, 41 and 42, and had reserved the domain names ‘paris-sansfil.info’, ‘paris-sansfil.fr’, ‘paris-sansfil.org’ and ‘paris-sansfil.com’.
In application of Article L.711-4 of the French Intellectual Property Code, which provides that ‘Signs may not be adopted as marks where they infringe earlier rights, particularly […] the name, image or repute of a local authority’, the City of Paris requested the annulment of the trademark.
The High Court held that in such a case a local authority has to demonstrate that the use of a litigious sign entails a likelihood of confusion with its own activities or that the use is likely to cause prejudice. In the present case, the Court noted that the City of Paris did bring evidence that it has developed activities in the field of information technologies, in particular in the development of high bandwidth and Wi-Fi, and that it therefore demonstrated that the use of the trademark entailed a risk of confusion on the part of the public. Consequently, the Court annulled the trademark ‘Paris-Sans Fil’.
For the same reasons, the Court held that the use of the name ‘Paris-Sans Fil’ and the registration of the domain names mentioned above, constitute a tort in the meaning of Article 1382 of the Civil Code, which provides that ‘Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.’
The Court ordered the association to change its name and to carry out the cancellation of the domain names. The association was ordered to pay symbolic damages to the City –1 euro– but the Court authorized the publication of the judgment in three newspapers or magazines of the plaintiff’s choice, and at the defendant’s expense.
It is not the first time the City of Paris successfully brings a case to court to defend its rights to its name, image and repute, on the grounds of Article L.711-4 of the Intellectual Property Code (see our commentary of the judgement of the High Court of First Instance dated 14 March 2007 at http://juriscom.net/actu/visu.php?ID=923).
BRAD SPITZ
www.bradspitz.com
http://juriscom.net/jpt/visu.php?ID=954
The City of Paris brought an action before the High Court of First Instance of Paris against an association that registered under the name ‘Paris-Sans Fil’ (‘Wireless Paris’). The association had registered the trademark ‘Paris-Sans Fil’ in the classes 35, 38, 41 and 42, and had reserved the domain names ‘paris-sansfil.info’, ‘paris-sansfil.fr’, ‘paris-sansfil.org’ and ‘paris-sansfil.com’.
In application of Article L.711-4 of the French Intellectual Property Code, which provides that ‘Signs may not be adopted as marks where they infringe earlier rights, particularly […] the name, image or repute of a local authority’, the City of Paris requested the annulment of the trademark.
The High Court held that in such a case a local authority has to demonstrate that the use of a litigious sign entails a likelihood of confusion with its own activities or that the use is likely to cause prejudice. In the present case, the Court noted that the City of Paris did bring evidence that it has developed activities in the field of information technologies, in particular in the development of high bandwidth and Wi-Fi, and that it therefore demonstrated that the use of the trademark entailed a risk of confusion on the part of the public. Consequently, the Court annulled the trademark ‘Paris-Sans Fil’.
For the same reasons, the Court held that the use of the name ‘Paris-Sans Fil’ and the registration of the domain names mentioned above, constitute a tort in the meaning of Article 1382 of the Civil Code, which provides that ‘Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.’
The Court ordered the association to change its name and to carry out the cancellation of the domain names. The association was ordered to pay symbolic damages to the City –1 euro– but the Court authorized the publication of the judgment in three newspapers or magazines of the plaintiff’s choice, and at the defendant’s expense.
It is not the first time the City of Paris successfully brings a case to court to defend its rights to its name, image and repute, on the grounds of Article L.711-4 of the Intellectual Property Code (see our commentary of the judgement of the High Court of First Instance dated 14 March 2007 at http://juriscom.net/actu/visu.php?ID=923).
BRAD SPITZ
www.bradspitz.com
Thursday, 16 August 2007
Actions based simultaneously on infringement of copyright and unfair competition
Cour de cassation, Commercial Chamber, 12 June 2007, n° 05-17.349
Under French law, unfair competition, which is based on tort law, offers much wider protection than that afforded by intellectual property. Therefore, where the outcome of the case on the grounds of intellectual property is uncertain, it is advisable to take action simultaneously on the grounds of infringement of intellectual property and unfair competition.
In the present case, the plaintiffs (the companies Bollé Protection and Bushnell Performance Optics Europe) took legal action against the company Euro Protection for the infringement of ten or so models of sunglasses. They based their action on the grounds of copyright infringement, as well as unfair competition.
The Court of Appeal of Paris dismissed the action based on copyright infringement, ruling that the models were not original in the meaning of copyright law. The Court also dismissed the action based on unfair competition, holding that the action was founded on the same facts as those put forward to claim the infringement of copyright, which was dismissed for lack of originality of the products.
The Cour de Cassation (French Supreme Court for civil and criminal matters) approved the Court of Appeal for ruling that the products were not original, but reversed the ruling of the Court in that it rejected the action based on unfair competition. The Supreme Court held that where an action is not successful on the grounds of an intellectual property right, the claimant is still entitled to base its action on the grounds of unfair competition.
Therefore, a plaintiff may claim at the same time that an act constitutes an infringement of an intellectual property right and unfair competition: if the judges rule that the plaintiff’s action is inadmissible on the basis of the intellectual property right, they will have to determine whether unfair competition is established by assessing all the facts stated, including the resemblance between the products.
BRAD SPITZ
www.bradspitz.com
Under French law, unfair competition, which is based on tort law, offers much wider protection than that afforded by intellectual property. Therefore, where the outcome of the case on the grounds of intellectual property is uncertain, it is advisable to take action simultaneously on the grounds of infringement of intellectual property and unfair competition.
In the present case, the plaintiffs (the companies Bollé Protection and Bushnell Performance Optics Europe) took legal action against the company Euro Protection for the infringement of ten or so models of sunglasses. They based their action on the grounds of copyright infringement, as well as unfair competition.
The Court of Appeal of Paris dismissed the action based on copyright infringement, ruling that the models were not original in the meaning of copyright law. The Court also dismissed the action based on unfair competition, holding that the action was founded on the same facts as those put forward to claim the infringement of copyright, which was dismissed for lack of originality of the products.
The Cour de Cassation (French Supreme Court for civil and criminal matters) approved the Court of Appeal for ruling that the products were not original, but reversed the ruling of the Court in that it rejected the action based on unfair competition. The Supreme Court held that where an action is not successful on the grounds of an intellectual property right, the claimant is still entitled to base its action on the grounds of unfair competition.
Therefore, a plaintiff may claim at the same time that an act constitutes an infringement of an intellectual property right and unfair competition: if the judges rule that the plaintiff’s action is inadmissible on the basis of the intellectual property right, they will have to determine whether unfair competition is established by assessing all the facts stated, including the resemblance between the products.
BRAD SPITZ
www.bradspitz.com
Friday, 27 July 2007
The Prince of Monaco has the right to respect for his private life
Cour de cassation, 1re civ., 27 February 2007, n° 06-10.393, Hachette Filipacchi and others v Albert Grimaldi
In 2005, Paris-Match, the French magazine owned by Hachette Filipacchi, published an interview with Mrs Coste, revealing the birth of her baby boy, fathered by Albert Grimaldi, Prince of Monaco. Several photos illustrated the text. The cover of the magazine had the title ‘Albert of Monaco: Alexandre, the secret child, Nicole, his mother, tells their long story’. Prince Albert brought the case before the High Court of First Instance arguing that the publication infringed on his privacy. The Court condemned Hachette Filipacchi, on the grounds of Article 9 of the French Civil Code, to damages and to the publication of the ruling. The Court of Appeal of Versailles confirmed the ruling. Hachette Filipacchi did not accept the ruling, and appealed before the Cour de Cassation (French Supreme Court for civil and criminal matters).
Article 9 of the Civil Code provides that ‘Everyone has the right to respect for his private life.’ These provisions are rather laconic. The judges generally try to strike a balance between the right to privacy and three forms of justifications: the consent of the person concerned, the reporting of current events and the contribution to a debate of public interest (see the commentary of A. Lepage on the ruling of 27 October 2007, Communication Commerce Electronique, n° 7-8 July-August 2007, page 41 and J.-P. Gridel, Protection de la vie privée: rupture ou continuité?, Gazette du Palais, 18-19 May 2007, p. 4 et seq). For example, a preceding case (Cour de Cassation 1re civ, 24 October 2006, n° 04-16.706) ruled that the fact that a mayor and municipal councillors were freemasons could be disclosed, since the mayor had been charged with forgery and favouritism, and that the disclosure came within the context of a judicial debate and was justified by being information for the public on a debate of general interest.
In the present case, the Cour de Cassation, on 27 February 2007, considered that the reporting of current events could not prevail over the prince’s right to respect for his privacy, and that there was no public debate on the subject.
Before the Supreme Court, Hachette Filipacchi argued that the Court of Appeal of Versailles had misapplied Articles 9 of the Civil Code and 10 of the European Convention on Human Rights, since the disclosure of Prince Albert’s paternity, Prince Albert being a reigning sovereign since April 2005, was relevant to a debate on public affairs, because of the functions of the person concerned, and was justified by the right to information of the readership.
The Supreme Court dismissed Hachette Filipacchi’s arguments, stating that any person has the right to respect for his private life, whatever his station, birth or functions may be. Moreover, the Supreme Court notes that, at the time the article was published, the public had no knowledge of the existence or filiation of the child, and that the constitution of the Principality excludes any possibility of the child acceding to the throne, since he was born out of marriage wedlock, while Hachette Filipacchi did not even argue that any public debates were being held on the subject in Monaco or France. The Court finally notes that the article digressed, writing about the relationship between Mme Coste and Prince Albert, his reaction to the announcement of the pregnancy and his subsequent behaviour towards the child.
The Supreme Court therefore approved the Court of Appeal for concluding that the absence of any current event or any debate of general interest for which the legitimate information of the public would have justified the disclosure of information at the time of the publication of the litigious article, and dismissed the appeal of Hachette Filipacchi against the ruling of the Court of Appeal.
The Supreme Court carefully verified whether the right of the public to information justified the disclosure of information on the prince’s privacy. In another case, the Supreme Court ruled that a birth in a princely family (actually the same family) meets the necessity of information and may be disclosed to the public where the birth is likely to have political or dynastical implications (Cour de Cassation 2me civ, 24 October 2006, n° 02-11.122).
BRAD SPITZ
www.bradspitz.com
In 2005, Paris-Match, the French magazine owned by Hachette Filipacchi, published an interview with Mrs Coste, revealing the birth of her baby boy, fathered by Albert Grimaldi, Prince of Monaco. Several photos illustrated the text. The cover of the magazine had the title ‘Albert of Monaco: Alexandre, the secret child, Nicole, his mother, tells their long story’. Prince Albert brought the case before the High Court of First Instance arguing that the publication infringed on his privacy. The Court condemned Hachette Filipacchi, on the grounds of Article 9 of the French Civil Code, to damages and to the publication of the ruling. The Court of Appeal of Versailles confirmed the ruling. Hachette Filipacchi did not accept the ruling, and appealed before the Cour de Cassation (French Supreme Court for civil and criminal matters).
Article 9 of the Civil Code provides that ‘Everyone has the right to respect for his private life.’ These provisions are rather laconic. The judges generally try to strike a balance between the right to privacy and three forms of justifications: the consent of the person concerned, the reporting of current events and the contribution to a debate of public interest (see the commentary of A. Lepage on the ruling of 27 October 2007, Communication Commerce Electronique, n° 7-8 July-August 2007, page 41 and J.-P. Gridel, Protection de la vie privée: rupture ou continuité?, Gazette du Palais, 18-19 May 2007, p. 4 et seq). For example, a preceding case (Cour de Cassation 1re civ, 24 October 2006, n° 04-16.706) ruled that the fact that a mayor and municipal councillors were freemasons could be disclosed, since the mayor had been charged with forgery and favouritism, and that the disclosure came within the context of a judicial debate and was justified by being information for the public on a debate of general interest.
In the present case, the Cour de Cassation, on 27 February 2007, considered that the reporting of current events could not prevail over the prince’s right to respect for his privacy, and that there was no public debate on the subject.
Before the Supreme Court, Hachette Filipacchi argued that the Court of Appeal of Versailles had misapplied Articles 9 of the Civil Code and 10 of the European Convention on Human Rights, since the disclosure of Prince Albert’s paternity, Prince Albert being a reigning sovereign since April 2005, was relevant to a debate on public affairs, because of the functions of the person concerned, and was justified by the right to information of the readership.
The Supreme Court dismissed Hachette Filipacchi’s arguments, stating that any person has the right to respect for his private life, whatever his station, birth or functions may be. Moreover, the Supreme Court notes that, at the time the article was published, the public had no knowledge of the existence or filiation of the child, and that the constitution of the Principality excludes any possibility of the child acceding to the throne, since he was born out of marriage wedlock, while Hachette Filipacchi did not even argue that any public debates were being held on the subject in Monaco or France. The Court finally notes that the article digressed, writing about the relationship between Mme Coste and Prince Albert, his reaction to the announcement of the pregnancy and his subsequent behaviour towards the child.
The Supreme Court therefore approved the Court of Appeal for concluding that the absence of any current event or any debate of general interest for which the legitimate information of the public would have justified the disclosure of information at the time of the publication of the litigious article, and dismissed the appeal of Hachette Filipacchi against the ruling of the Court of Appeal.
The Supreme Court carefully verified whether the right of the public to information justified the disclosure of information on the prince’s privacy. In another case, the Supreme Court ruled that a birth in a princely family (actually the same family) meets the necessity of information and may be disclosed to the public where the birth is likely to have political or dynastical implications (Cour de Cassation 2me civ, 24 October 2006, n° 02-11.122).
BRAD SPITZ
www.bradspitz.com
Wednesday, 18 July 2007
The Tony Parker and Eva Longoria Wedding : a non happening (?)
A few days ago we all saw the “so no pictures” of the Parisian wedding of Tony Parker and Eva Longoria on television.
The crowds of curious onlookers attracted by the media hype hovered around the “non event” that has been the most publicized invisible celebrity event of the year.
Buses with heavily tinted windows and large black umbrellas made to resemble protective screens stopped any chance of a stolen glance.
And what of the metal barriers that pushed the public as far away as possible, turning a public area into a totally private place?
Was it to protect the couple’s privacy? No way!!!
It’s business, business and business as ever! And with total disregard for tradition and the laws of marriage, which is legally a public event.
And remember, these stars live off the public. They owe their fame and fortune to their devoted followers. But the public is naïve, faithful and devoid of any ulterior motive. They wait for hours in the hope of catching a glimpse. Dream on Desperate Followers.
But no, this public will get nothing. And if they want to see anything at all they will have to buy the magazine that paid such a high price for an exclusive of the wedding photos. Pictures that are said to be soaring out of sight on the internet auction.
Yes, it is actually nil/null, literally as well as figuratively.
What a nil event to deprive the Faithful of attending the traditional photo taking session that customarily takes place outside the town hall and then the church. Nil, hiding a much more serious null event – the wedding itself.
The act of being married in “huis clos” simply annuls the marriage.
Indeed, Article 165 of the French Civil Code states that a wedding must be held in public – ie in a hall with open doors allowing the public to enter freely. But what happens when the town hall is so inaccessible, that entrance is impossible irrespective of whether the doors are closed or open?
jllavoc (aka Jean-Louis LANGLOIS)
www.bradspitz.com
The crowds of curious onlookers attracted by the media hype hovered around the “non event” that has been the most publicized invisible celebrity event of the year.
Buses with heavily tinted windows and large black umbrellas made to resemble protective screens stopped any chance of a stolen glance.
And what of the metal barriers that pushed the public as far away as possible, turning a public area into a totally private place?
Was it to protect the couple’s privacy? No way!!!
It’s business, business and business as ever! And with total disregard for tradition and the laws of marriage, which is legally a public event.
And remember, these stars live off the public. They owe their fame and fortune to their devoted followers. But the public is naïve, faithful and devoid of any ulterior motive. They wait for hours in the hope of catching a glimpse. Dream on Desperate Followers.
But no, this public will get nothing. And if they want to see anything at all they will have to buy the magazine that paid such a high price for an exclusive of the wedding photos. Pictures that are said to be soaring out of sight on the internet auction.
Yes, it is actually nil/null, literally as well as figuratively.
What a nil event to deprive the Faithful of attending the traditional photo taking session that customarily takes place outside the town hall and then the church. Nil, hiding a much more serious null event – the wedding itself.
The act of being married in “huis clos” simply annuls the marriage.
Indeed, Article 165 of the French Civil Code states that a wedding must be held in public – ie in a hall with open doors allowing the public to enter freely. But what happens when the town hall is so inaccessible, that entrance is impossible irrespective of whether the doors are closed or open?
jllavoc (aka Jean-Louis LANGLOIS)
www.bradspitz.com
DailyMotion: a ‘hosting provider’ liable for copyright infringement
The President of the High Court of First Instance of Paris, in a summary order dated 22 June 2007, held that despite the fact that MySpace is a hosting provider, it acts as a publisher and may therefore be held liable for copyright infringement on its site (see our post here below: ‘The Buttock’ sues MySpace for copyright infringement’, also at http://juriscom.net/actu/visu.php?ID=942).
In a proceeding on the merits (as opposed to the summary procedure before the President of the Court), the High Court of First Instance of Paris, in a judgment dated 13 July 2007 (http://www.juriscom.net/jpt/visu.php?ID=947), ruled that DailyMotion is not a publisher. In this case, the producers of the film ‘Joyeux Noel’ sued DailyMotion on the grounds of copyright infringement for the presence of the film on the site.
DailyMotion argued, on the grounds of the French Act of 21 June 2004 on Confidence in the Digital Environment, that it is a mere hosting provider and as such was under no obligation to actively seek facts or circumstances indicating illegal activity, while the plaintiffs argued that DailyMotion is a publisher, and should therefore be held liable for copyright infringement on its site.
The judges held that DailyMotion is a hosting provider, and not a publisher, but that it must be held liable for copyright infringement, as it was aware of the presence of illegal contents on its site. The Court ruled that DailyMotion is not a publisher because the users themselves provide the contents, despite the fact that DailyMotion commercialises advertisements on the site (the President of the same Court, in its order dated 22 June 2007, held that because of the advertisements on the site, MySpace acted as a publisher).
Moreover, the Court held that the provisions of Article 6-I-2 of the French Act on Confidence in the Digital Environment do not provide for a general exemption for providers, but only for a limitation of the liability of the providers where the providers are not “aware” of the illegal nature of the activity or content.
The provisions of Article 6-I-2 come from the implementation of the Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services (Directive on electronic commerce), which provides, in Article 14, that “Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which illegal activity or information is apparent
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.”
It is interesting to note that the US Digital Millenium Copyright Act (DMCA) provides that a service provider shall not be held liable if the provider: ‘does not have actual knowledge that the material or an activity using the material on the system or network is infringing; in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material’ (§ 512(c) of the US Copyright Act).
The Parisian judges held that DailyMotion was aware that illegal videos were put on line on its site, and that it must therefore be held liable for the acts of copyright infringement, since it deliberately furnished the users with the means to commit the acts of infringement. The solution could be the same before an American court, in particular in application of the provisions of § 512 of the Copyright Act.
The Court also noted that DailyMotion did not act to disable access to the litigious film, whether after receiving a formal letter from the plaintiffs (who sent the letter to DailyMotion before bringing the case to court) or after the damage occurred, whereas it is of the provider’s responsibility to carry out a prior control. The judges specified that even though the law does not provide for a general obligation for the providers to actively seek facts or circumstances indicating illegal activities, this limitation is not applicable where the said activities are created or induced by the provider himself.
DailyMotion was condemned by the Court not only for the violation of the plaintiffs’ economic rights (‘droits patrimoniaux’), but also for the violation of the plaintiff’s right of integrity (referred to under UK copyright law as the right to object to derogatory treatment), since the ‘streaming’ means used to broadcast the film only allow a very poor quality visualisation, which is not suited to a feature film, and since the unity of the film was undermined by the fact that it was split into two parts.
BRAD SPITZ
www.bradspitz.com
In a proceeding on the merits (as opposed to the summary procedure before the President of the Court), the High Court of First Instance of Paris, in a judgment dated 13 July 2007 (http://www.juriscom.net/jpt/visu.php?ID=947), ruled that DailyMotion is not a publisher. In this case, the producers of the film ‘Joyeux Noel’ sued DailyMotion on the grounds of copyright infringement for the presence of the film on the site.
DailyMotion argued, on the grounds of the French Act of 21 June 2004 on Confidence in the Digital Environment, that it is a mere hosting provider and as such was under no obligation to actively seek facts or circumstances indicating illegal activity, while the plaintiffs argued that DailyMotion is a publisher, and should therefore be held liable for copyright infringement on its site.
The judges held that DailyMotion is a hosting provider, and not a publisher, but that it must be held liable for copyright infringement, as it was aware of the presence of illegal contents on its site. The Court ruled that DailyMotion is not a publisher because the users themselves provide the contents, despite the fact that DailyMotion commercialises advertisements on the site (the President of the same Court, in its order dated 22 June 2007, held that because of the advertisements on the site, MySpace acted as a publisher).
Moreover, the Court held that the provisions of Article 6-I-2 of the French Act on Confidence in the Digital Environment do not provide for a general exemption for providers, but only for a limitation of the liability of the providers where the providers are not “aware” of the illegal nature of the activity or content.
The provisions of Article 6-I-2 come from the implementation of the Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services (Directive on electronic commerce), which provides, in Article 14, that “Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which illegal activity or information is apparent
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.”
It is interesting to note that the US Digital Millenium Copyright Act (DMCA) provides that a service provider shall not be held liable if the provider: ‘does not have actual knowledge that the material or an activity using the material on the system or network is infringing; in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material’ (§ 512(c) of the US Copyright Act).
The Parisian judges held that DailyMotion was aware that illegal videos were put on line on its site, and that it must therefore be held liable for the acts of copyright infringement, since it deliberately furnished the users with the means to commit the acts of infringement. The solution could be the same before an American court, in particular in application of the provisions of § 512 of the Copyright Act.
The Court also noted that DailyMotion did not act to disable access to the litigious film, whether after receiving a formal letter from the plaintiffs (who sent the letter to DailyMotion before bringing the case to court) or after the damage occurred, whereas it is of the provider’s responsibility to carry out a prior control. The judges specified that even though the law does not provide for a general obligation for the providers to actively seek facts or circumstances indicating illegal activities, this limitation is not applicable where the said activities are created or induced by the provider himself.
DailyMotion was condemned by the Court not only for the violation of the plaintiffs’ economic rights (‘droits patrimoniaux’), but also for the violation of the plaintiff’s right of integrity (referred to under UK copyright law as the right to object to derogatory treatment), since the ‘streaming’ means used to broadcast the film only allow a very poor quality visualisation, which is not suited to a feature film, and since the unity of the film was undermined by the fact that it was split into two parts.
BRAD SPITZ
www.bradspitz.com
Wednesday, 11 July 2007
Civil Procedure Used for Enforcement of EC Competition Law
Civil Procedure Used for Enforcement of EC Competition Law by the English, French and German Courts
KLUWER International Competition Law (Hardcover)
by Brad Spitz, George Cumming and Ruth Janal
Synopsis:
European competition law has been increasingly subject to two complementary forces: decentralisation and harmonisation. In the course of this process, certain procedural elements have come to the fore as constituting impediments to the enforcement of Articles 81 and 82 EC in terms of actions for damages. While ECJ case law appears to establish a type of 'minimum' enforcement in this area, the far-reaching analysis presented in this book shows how an 'adequate' or even 'optimal' degree of enforcement may be achieved by effecting a choice between competing procedural solutions. Focusing on rules of civil procedure used by the ordinary courts of England, France, and Germany, the authors show how basic principles - such as protection of the rights of the defence, legal certainty, and proper conduct of the procedure - facilitate the application of the doctrines of effectiveness and non-discrimination to those elements of the national procedure which impede in some manner the effective enforcement of Articles 81 and 82 EC. Their in-depth analysis ranges over procedural aspects of such elements as rules of evidence, costs, expert testimony, injunctions, burden of proof, limitations, and forms of compensation, ultimately leading them to propose clear modifications of certain rules of national procedure that go a long way toward ensuring adequately effective enforcement. This remarkable book breaks through an impasse in European competition law. It serves to steady the balance which has been sought between the different actors of the procedure in each of the national systems studied. For practitioners and jurists it offers a particularly useful approach to the handling of cases involving European competition law, and also serves as a guide by reason of its clear presentation, its clarification of doctrine, and its analysis of national and European case law.
http://www.amazon.co.uk/Procedure-Enforcement-Competition-English-International/dp/9041124713
BRAD SPITZ
www.bradspitz.com
KLUWER International Competition Law (Hardcover)
by Brad Spitz, George Cumming and Ruth Janal
Synopsis:
European competition law has been increasingly subject to two complementary forces: decentralisation and harmonisation. In the course of this process, certain procedural elements have come to the fore as constituting impediments to the enforcement of Articles 81 and 82 EC in terms of actions for damages. While ECJ case law appears to establish a type of 'minimum' enforcement in this area, the far-reaching analysis presented in this book shows how an 'adequate' or even 'optimal' degree of enforcement may be achieved by effecting a choice between competing procedural solutions. Focusing on rules of civil procedure used by the ordinary courts of England, France, and Germany, the authors show how basic principles - such as protection of the rights of the defence, legal certainty, and proper conduct of the procedure - facilitate the application of the doctrines of effectiveness and non-discrimination to those elements of the national procedure which impede in some manner the effective enforcement of Articles 81 and 82 EC. Their in-depth analysis ranges over procedural aspects of such elements as rules of evidence, costs, expert testimony, injunctions, burden of proof, limitations, and forms of compensation, ultimately leading them to propose clear modifications of certain rules of national procedure that go a long way toward ensuring adequately effective enforcement. This remarkable book breaks through an impasse in European competition law. It serves to steady the balance which has been sought between the different actors of the procedure in each of the national systems studied. For practitioners and jurists it offers a particularly useful approach to the handling of cases involving European competition law, and also serves as a guide by reason of its clear presentation, its clarification of doctrine, and its analysis of national and European case law.
http://www.amazon.co.uk/Procedure-Enforcement-Competition-English-International/dp/9041124713
BRAD SPITZ
www.bradspitz.com
‘The Buttock’ sues MySpace for copyright infringement
On June 22, 2007, the President of the High Court of First Instance of Paris, in a summary order, held that MySpace acts as a publisher, and condemned the service for copyright infringement (Tribunal de grande instance de Paris, Ordonnance de référé, 22 juin 2007, http://www.legalis.net).
Jean-Yves L., a French comedian known by the name of “Lafesse” (literally “the buttock”!), and famous for the (very funny) filmed sketches he directs and acts in, sued MySpace for having reproduced and broadcast his works without any authorisation.
The Court first notes that the terms and conditions of MySpace define the website as “a social networking service that allows Members to create unique personal profiles online in order to find and communicate with old and new friends”.
The Court considered that if MySpace acts as a hosting provider, it also acts as a publisher, since it puts presentation structures at the disposal of the people who are hosted, and makes a profit by broadcasting advertisements each time a video is viewed. The Court therefore concluded that MySpace acts as a publisher and is liable for copyright infringement.
The Court condemned MySpace by application of Article L.122-4 of the French Intellectual Property Code that provides that “Any complete or partial performance or reproduction made without the consent of the author or of his successors in title or assigns shall be unlawful. The same shall apply to translation, adaptation or transformation, arrangement or reproduction by any technique or process whatsoever”.
The Court ordered the deletion of the litigious page, with a 1.000 euros daily fine for delay in performance.
The Court also condemned MySpace to the payment of 50.000 euros for the commercial prejudice suffered, 3.000 euros for the infringement of the plaintiff’s moral rights, and 5.000 euros for the violation of his personal rights (use of his name and likeness). The Court allocated these amounts on a provisional basis, as this is a summary judgment for urgent matters (theoretically, the plaintiff then takes action on the merits of the case before a court that will render a final judgement). MySpace was also ordered to pay of 3.000 euros to cover the plaintiff’s legal fees.
It seems that the “Bottock”, who is also suing other sites such as Youtube and Dailymotion (http://www.lefigaro.fr), is becoming a pain in the a… for these hosting sites.
BRAD SPITZ
www.bradspitz.com
Jean-Yves L., a French comedian known by the name of “Lafesse” (literally “the buttock”!), and famous for the (very funny) filmed sketches he directs and acts in, sued MySpace for having reproduced and broadcast his works without any authorisation.
The Court first notes that the terms and conditions of MySpace define the website as “a social networking service that allows Members to create unique personal profiles online in order to find and communicate with old and new friends”.
The Court considered that if MySpace acts as a hosting provider, it also acts as a publisher, since it puts presentation structures at the disposal of the people who are hosted, and makes a profit by broadcasting advertisements each time a video is viewed. The Court therefore concluded that MySpace acts as a publisher and is liable for copyright infringement.
The Court condemned MySpace by application of Article L.122-4 of the French Intellectual Property Code that provides that “Any complete or partial performance or reproduction made without the consent of the author or of his successors in title or assigns shall be unlawful. The same shall apply to translation, adaptation or transformation, arrangement or reproduction by any technique or process whatsoever”.
The Court ordered the deletion of the litigious page, with a 1.000 euros daily fine for delay in performance.
The Court also condemned MySpace to the payment of 50.000 euros for the commercial prejudice suffered, 3.000 euros for the infringement of the plaintiff’s moral rights, and 5.000 euros for the violation of his personal rights (use of his name and likeness). The Court allocated these amounts on a provisional basis, as this is a summary judgment for urgent matters (theoretically, the plaintiff then takes action on the merits of the case before a court that will render a final judgement). MySpace was also ordered to pay of 3.000 euros to cover the plaintiff’s legal fees.
It seems that the “Bottock”, who is also suing other sites such as Youtube and Dailymotion (http://www.lefigaro.fr), is becoming a pain in the a… for these hosting sites.
BRAD SPITZ
www.bradspitz.com
Tuesday, 10 July 2007
Whistleblowing in France
Read our article on whistleblowing "Whistleblowing : quand un rapport propose d’élargir le domaine
de l’alerte professionnelle, la CNIL siffle le hors-jeu".
At: http://juriscom.net/documents/alertepro20070425.pdf
BRAD SPITZ
www.bradspitz.com
de l’alerte professionnelle, la CNIL siffle le hors-jeu".
At: http://juriscom.net/documents/alertepro20070425.pdf
BRAD SPITZ
www.bradspitz.com
Monday, 9 July 2007
Le mariage de Tony Parker et de Eva Longoria : un événement nul (?)
On a tous pu voir à la télévision, il y a quelques jours, les « non images » du mariage parisien de Tony Parker / Eva Longoria.
La foule des badauds, attirés là par le battage des médias autour de ce « non événement » le plus people mais le moins visible et le moins public de l’année.
Les autocars aux vitres fumées, les « borgnioles » opacifiantes déployées, les larges parapluies noirs en guise d’écran protecteur pour toute possibilité de prises de vue comme de tous regards indiscrets, avaient de quoi choquer.
Et que dire des barrières métalliques repoussant le plus loin possible le public, privatisant ainsi tout un espace habituellement public.
La protection de la vie privée ? Certainement pas !!!
Du commerce, du commerce, rien que du commerce ! Tout ceci au mépris des traditions et de la loi qui font des cérémonies du mariage, des choses publiques.
Il ne faut pas oublier que ces « peoples » vivent du public. Que c’est le public qui fait leurs notoriétés et leurs fortunes. Précisément ce public naïf, mais fidèle et désintéressé, qui se presse des heures durant par espoir d’une vision furtive.
Mais non, ce public n’aura droit à rien en retour. Et s’il veut voir quoi que ce soit, qu’il aille donc acheter le magazine qui s’est réservé au prix fort l’exclusivité des clichés. Clichés dont on dit aujourd’hui sur internet que les enchères montent !
Alors oui ! la nullité est là et bien là, au propre comme au figuré.
Nullité de l’événement pour priver les « afficionados » d’assister à la traditionnelle photo de sortie de la mairie puis de l’église, puisque mariage religieux il y a eu. Nullité qui pourrait bien en masquer une autre, plus conséquente, celle éventuelle du mariage lui-même.
Car en écartant par principe le public de la célébration à la mairie, en tenant pour privé un événement que la loi prévoit être public, les époux Parker, par crainte qu’on leur vole un peu de leur image, sont tombés de Charybde et Scylla.
La manière « nulle » qu’ils ont eu de gérer leur image, n’a d’égale que la nullité plus conséquente qu’ils pourraient encourir à raison du « huis clos » dans lequel ils ont tenu leur mariage: celle tout simplement de son annulation.
En effet par application de l’article 165 du code civil, la célébration du mariage doit se dérouler publiquement, c’est-à-dire dans une salle dont les portes doivent être tenues ouvertes et le public admis librement. Mais qu'en est-il lorsque la porte de la mairie est si inaccessible, qu'en toute hypothèse, ouverte ou fermée, on ne peut y accéder?
jllavoc (aka Jean-Louis LANGLOIS)
La foule des badauds, attirés là par le battage des médias autour de ce « non événement » le plus people mais le moins visible et le moins public de l’année.
Les autocars aux vitres fumées, les « borgnioles » opacifiantes déployées, les larges parapluies noirs en guise d’écran protecteur pour toute possibilité de prises de vue comme de tous regards indiscrets, avaient de quoi choquer.
Et que dire des barrières métalliques repoussant le plus loin possible le public, privatisant ainsi tout un espace habituellement public.
La protection de la vie privée ? Certainement pas !!!
Du commerce, du commerce, rien que du commerce ! Tout ceci au mépris des traditions et de la loi qui font des cérémonies du mariage, des choses publiques.
Il ne faut pas oublier que ces « peoples » vivent du public. Que c’est le public qui fait leurs notoriétés et leurs fortunes. Précisément ce public naïf, mais fidèle et désintéressé, qui se presse des heures durant par espoir d’une vision furtive.
Mais non, ce public n’aura droit à rien en retour. Et s’il veut voir quoi que ce soit, qu’il aille donc acheter le magazine qui s’est réservé au prix fort l’exclusivité des clichés. Clichés dont on dit aujourd’hui sur internet que les enchères montent !
Alors oui ! la nullité est là et bien là, au propre comme au figuré.
Nullité de l’événement pour priver les « afficionados » d’assister à la traditionnelle photo de sortie de la mairie puis de l’église, puisque mariage religieux il y a eu. Nullité qui pourrait bien en masquer une autre, plus conséquente, celle éventuelle du mariage lui-même.
Car en écartant par principe le public de la célébration à la mairie, en tenant pour privé un événement que la loi prévoit être public, les époux Parker, par crainte qu’on leur vole un peu de leur image, sont tombés de Charybde et Scylla.
La manière « nulle » qu’ils ont eu de gérer leur image, n’a d’égale que la nullité plus conséquente qu’ils pourraient encourir à raison du « huis clos » dans lequel ils ont tenu leur mariage: celle tout simplement de son annulation.
En effet par application de l’article 165 du code civil, la célébration du mariage doit se dérouler publiquement, c’est-à-dire dans une salle dont les portes doivent être tenues ouvertes et le public admis librement. Mais qu'en est-il lorsque la porte de la mairie est si inaccessible, qu'en toute hypothèse, ouverte ou fermée, on ne peut y accéder?
jllavoc (aka Jean-Louis LANGLOIS)
Thursday, 5 July 2007
The Olympic games infringement case, and the winner is ... Paris
On 14 March 2007, the High Court of First Instance of Paris (‘Tribunal de Grande Instance’) rendered a judgement (1) condemning a Parisian, Mr Gilbert L., for registering, in March and July 2005, the trade marks “Paris 2016”, “Paris 2020”, “Paris 2024” and “Paris 2028”, and the domain names “paris2016.com”, “paris2016.fr”, “paris2020.com”, “paris2020.fr”, etc…
London stealing the chance to organise the Olympic games of 2012 from Paris (“Paris 2012”) in 2005, was bad enough; this second form of theft could not be tolerated. Paris and the Comité national olympic et sportif français (“CNOSF”, the French National Olympic and Sport Comity), a French association which represents the Olympic Movement in France, took action against Mr Gilbert L. at the end of 2005, claiming the infringement of CNOSF’s trade mark “Paris 2012’”.
In its judgement, the Paris Court first explains that it is customary for cities candidate for the Olympic games to authorise the use of their names, followed by the year of the relevant games. In January 2003, the CNOSF indeed applied for the registration of the French trade mark “Paris 2012” for the products and services in the international classes 1 to 45.
The Court annulled the trade marks registered by Mr Gilbert L., on the grounds of Article L.712-6 of the French Intellectual Property Code (IPC) which provides that “Where registration has been applied for, either fraudulently with respect to the rights of another person or in violation of a statutory or contractual obligation, any person who believes he has a right to the mark may claim ownership by legal proceedings”. The Court took into consideration the fact that the press had published numerous articles over the years on the Olympic games in Paris, designating the event as “Paris 2012”. The court also highlighted that it is well known that the games are in part financed by the licensing of trade marks to companies exploiting all types of products.
Following the same reasoning, the Court ruled that the registration of the domain names was fraudulent.
The action was also based on the infringement of the trademark “Paris 2012”. As the signs at stake were not identical (“Paris 2012” / “Paris 2016”, “Paris 2020”, “Paris 2024”, “Paris 2028”), the Court examined the infringement in the light of Article L.713-3 b IPC, that provides that “shall be prohibited, unless authorized by the owner, if there is a likelihood of confusion in the mind of the public, the imitation of a mark and the use of an imitated mark for goods or services that are identical or similar to those designated in the registration”. The provisions of Article L.713-3 b IPC are very close to those of Section 10(2)(a) of the UK Trade Marks Act 1994 (2). The Court found that the signs had visual and phonetic similarities, and that they were conceptually close, since all of them evoked the organisation of the summer Olympic games in Paris, and were based on the use of the year in which these sports events would be organised.
For the same reasons, the Court ruled that the registration of the litigious domain names also constituted acts of infringement by imitation.
The Court finally held that the registration and use of the term “Paris” undermined the rights of the City of Paris to its name, image and repute. Article L.711-4 h IPC indeed provides that “Signs may not be adopted as marks where they infringe earlier rights, particularly […] the name, image or repute of a local authority”.
As regards the sanctions, the Courts condemned Mr Gilbert L. to the payment of damages to the CNOSF: 5.000 euros for the fraudulent registration, and 5.000 euros for the acts of infringement. As the litigious trade marks had hardly been exploited, the Court condemned the out of line Parisian to the payment of a “symbolic euro” to the City of Paris.
In a ruling dated 27 October 2004, the Court of Appeal of Paris (3) had already rendered a judgement relating to the registration of the trade mark “Paris 2000” and of the domain name “paris2000.info”. The Court held that the person who registered and used the domain name “paris2000.info” had committed acts of unfair competition (parasitism) (4), by creating a website with no connection to Paris in general, and to the City of Paris in particular.
(1) Court of High Instance of Paris, 14 mars 2007, 4e ch., www.legalis.net
(2) “A person infringes a registered trade mark if he uses in the course of trade a sign where because the sign is similar to the trade mark and is used in relation to goods or services identical or similar to those for which the trade mark is registered, there exists a likelihood of confusion in the part of the public, which includes the likelihood of association with the trade mark”.
(3) Court of Appeal of Paris, 4e ch., 27 octobre 2004, www.legalis.net
(4) French unfair competition law doctrine is close to the UK doctrine of passing off.
BRAD SPITZ
www.bradspitz.com
London stealing the chance to organise the Olympic games of 2012 from Paris (“Paris 2012”) in 2005, was bad enough; this second form of theft could not be tolerated. Paris and the Comité national olympic et sportif français (“CNOSF”, the French National Olympic and Sport Comity), a French association which represents the Olympic Movement in France, took action against Mr Gilbert L. at the end of 2005, claiming the infringement of CNOSF’s trade mark “Paris 2012’”.
In its judgement, the Paris Court first explains that it is customary for cities candidate for the Olympic games to authorise the use of their names, followed by the year of the relevant games. In January 2003, the CNOSF indeed applied for the registration of the French trade mark “Paris 2012” for the products and services in the international classes 1 to 45.
The Court annulled the trade marks registered by Mr Gilbert L., on the grounds of Article L.712-6 of the French Intellectual Property Code (IPC) which provides that “Where registration has been applied for, either fraudulently with respect to the rights of another person or in violation of a statutory or contractual obligation, any person who believes he has a right to the mark may claim ownership by legal proceedings”. The Court took into consideration the fact that the press had published numerous articles over the years on the Olympic games in Paris, designating the event as “Paris 2012”. The court also highlighted that it is well known that the games are in part financed by the licensing of trade marks to companies exploiting all types of products.
Following the same reasoning, the Court ruled that the registration of the domain names was fraudulent.
The action was also based on the infringement of the trademark “Paris 2012”. As the signs at stake were not identical (“Paris 2012” / “Paris 2016”, “Paris 2020”, “Paris 2024”, “Paris 2028”), the Court examined the infringement in the light of Article L.713-3 b IPC, that provides that “shall be prohibited, unless authorized by the owner, if there is a likelihood of confusion in the mind of the public, the imitation of a mark and the use of an imitated mark for goods or services that are identical or similar to those designated in the registration”. The provisions of Article L.713-3 b IPC are very close to those of Section 10(2)(a) of the UK Trade Marks Act 1994 (2). The Court found that the signs had visual and phonetic similarities, and that they were conceptually close, since all of them evoked the organisation of the summer Olympic games in Paris, and were based on the use of the year in which these sports events would be organised.
For the same reasons, the Court ruled that the registration of the litigious domain names also constituted acts of infringement by imitation.
The Court finally held that the registration and use of the term “Paris” undermined the rights of the City of Paris to its name, image and repute. Article L.711-4 h IPC indeed provides that “Signs may not be adopted as marks where they infringe earlier rights, particularly […] the name, image or repute of a local authority”.
As regards the sanctions, the Courts condemned Mr Gilbert L. to the payment of damages to the CNOSF: 5.000 euros for the fraudulent registration, and 5.000 euros for the acts of infringement. As the litigious trade marks had hardly been exploited, the Court condemned the out of line Parisian to the payment of a “symbolic euro” to the City of Paris.
In a ruling dated 27 October 2004, the Court of Appeal of Paris (3) had already rendered a judgement relating to the registration of the trade mark “Paris 2000” and of the domain name “paris2000.info”. The Court held that the person who registered and used the domain name “paris2000.info” had committed acts of unfair competition (parasitism) (4), by creating a website with no connection to Paris in general, and to the City of Paris in particular.
(1) Court of High Instance of Paris, 14 mars 2007, 4e ch., www.legalis.net
(2) “A person infringes a registered trade mark if he uses in the course of trade a sign where because the sign is similar to the trade mark and is used in relation to goods or services identical or similar to those for which the trade mark is registered, there exists a likelihood of confusion in the part of the public, which includes the likelihood of association with the trade mark”.
(3) Court of Appeal of Paris, 4e ch., 27 octobre 2004, www.legalis.net
(4) French unfair competition law doctrine is close to the UK doctrine of passing off.
BRAD SPITZ
www.bradspitz.com
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