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
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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.


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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.

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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


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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
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