Tuesday, 20 October 2009

A Draft Bill On Online Gambling

Official Journal AN, n° 348, 13 October 2009; Lamyline Reflex, L. Costes

On 13 October 2009, the French Deputies voted a draft bill on “competition and regulation in the field of oneline games played for money and games of chance”.

The aim of the Government is to control online gambling, which is currently illegal, but is in fact widespread. The ARJEL will be created (Authority for the regulation of online gambling), an independent agency in charge of granting licenses to the operators of online games.

In return for this renewable license, the websites will have to comply with specifications. Moreover, the sanctions against illegal websites will be more severe (up to 3 years imprisonment and fines of up to 45.000 Euros).

The Senate should examine this draft bill between the end of November and the beginning of December 2009.


Monday, 12 October 2009

A Decree Sets Out The 9 French Courts Specialised In Intellectual Property


The Directive 2004/48/EC on the enforcement of intellectual property rights was implemented in French law by the Law of 29 October 2007 on the fight against infringement and by the Law of 4 August 2008 on the modernisation of the economy. The aim of these acts is in particular to reinforce the body of law protecting intellectual property creations, to create a right to information for intellectual property owners and to reinforce provisional and precautionary measures.

The new 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’).

A Decree dated 9 October 2009, published in the Official Journal on 11 October, designates the 9 High Courts of First Instance (amongst the 181 existing High Courts) that now have exclusive jurisdiction for cases relating to copyright, designs and models, trade marks and appellations of origin: Bordeaux, Lille, Lyon, Marseille, Nanterre, Nancy, Paris, Rennes and Fort-de-France.


YouTube Is A Hosting Provider, Not A Publisher

High Court of First Instance of Paris (3rd Chamber), 22 September 2009, ADAMI c/ Société YouTube, RLDI 2009/53, L. Costes

The High Court of First Instance of Paris ruled that YouTube is a hosting provider under the French Act of 21 June 2004 on Confidence in the Digital Environment, and not a publisher.

The claimants, a comic double act, brought a copyright infringement case against YouTube after discovering that some of their videos were reproduced on YouTube’s website.

The Court rejected the claim, considering that no legal text excludes the qualification of hosting provider where a provider intends to broadcast the information that he stocks on his website, indeed more so that the Act on Confidence in the Digital Environment provides that storage must be in order to put the information at the disposal of the public by means of communication services, but the Act does not provide that this must necessarily be done by the service of the user. The Court therefore considers that the fact that videos were broadcasted on its website is not sufficient to consider that YouTube may be held liable for the content put on line and belonging to internet users.

Moreover, the Court ruled that YouTube is not liable in the present case, as YouTube may not be held responsible for not trying to do all it could to avoid the illegal content reappearing on its site (on the “stay down” obligation, see the ruling of the High Court of First Instance of Paris, 19 October 2007, http://copyrightfrance.blogspot.com/2007/11/google-video-held-liable-for-not-doing.html).


Saturday, 10 October 2009

The Music Website Radioblog Condemned To Pay Over 1 Million Euros In Damages

High Court of First Instance of Paris (31st Chamber), 3 September 2009, SCPP c/ J.-L. and B. T., www.legalis.net

The High Court of First Instance of Paris has condemned the music website Radioblof.fr for putting at the disposal of the public, on its site, links to recordings, and for permitting its visitors to export the play lists that they had created.

The Court considered that the owners of the site had, by so doing, infringed on the rights of the record producers, and that they had illegally published illegally software manifestly aimed at putting unauthorised protected works at the disposal of the public (Section L.335-2-1 of the French Intellectual Property Code).

The Court sentenced the two owners of the site to pay a fine of ten thousand Euros, with a one year suspended prison sentence.

The damages were calculated on the grounds of the new Section L.331-1-3 of the French Intellectual Property Code, which provides that “In order to set the damages, the Court takes into account the negative economic consequences, including the earnings of the author of the infringement and the moral prejudice caused to the rightholders” (L. n° 2007-1544, 29 October 2007: OJ 30 October 2007, which implements the Directive 2004/48/EC on the enforcement of intellectual property rights). The site attracted 800.000 visits daily, which generated a turnover of €403.286 in 2006, and a 686.469 in 2007 through advertising. The Court condemned the owners of the site to refund these sums to the rightholders, i.e. 1.089.755 Euros.


The French Personal Data Protection Law Confronted With The US Discovery Procedures

The CNIL, the French personal data controller, explains on its website that it “has found that a growing number of motions are being filed, requiring the disclosure of personal data held, among other, by French subsidiaries of US corporations subject to pre-trial discovery procedures in US litigation cases. It has become frequent to see companies or their foreign subsidiaries forced to turn over copies of the full contents of the hard disks or e-mail boxes of some employees, or even the entire personnel”.

For the whole presentation: www.cnil.fr/english/news-and-events/discovery-case/