“The law of the country where protection is sought governs all matters relating to the exercise and enjoyment of copyright, including the determination of the rights holder.”
Tuesday, 28 May 2013
Monday, 6 May 2013
Sunday, 5 May 2013
French Supreme Court (Cour de cassation, chambre sociale), 23 April 2013, 11-26.099 (published in the bulletin)
Under article 22 of the French personal data Act, automatic processing of personal data must be notified to the French personal data authority CNIL.
In the present case, a youth educator had been dismissed for refusing to enter data concerning minors under protective measures into a software that had been updated. The employee considered that he was not obliged to accept allegedly unlawful orders given by the employer.
The Court of Appeal of Aix-en-Provence found that the dismissal of the employee was not justified, because when the computer program EVA 3 was upgraded in January 2007 to EVA 4, personal data, which had been originally notified to the CNIL, had to be re-entered into the system by the educators, which meant that they had to be notified a second time to the CNIL beforehand.
The French Supreme Court has annulled the judgement of the Court of Appeal, stating that "only a substantial change in the information that has been previously declared has to be notified to the CNIL". The Court added that the mere updating of a computer program processing personal data does not entail an obligation for the data controller to notify the data-processing a second time.
The Supreme Court therefore annulled the judgement of the Court of Appeal of Aix-en-Provence as it had not verified whether the change of the computer program was a simple update or a change necessitating a new notification to the CNIL.
Read the case: Judgement
Saturday, 13 April 2013
"This agreement covers all types of videos broadcasted by YouTube"
The French collecting society SACEM, which manages the rights of authors and publishers of musical works, announced, on 3 April 2013, that it has entered into a new agreement with YouTube and Universal Music Publishing International (UMPI). This agreement defines the conditions of use of SACEM’s repertoire and UMPI’s Anglo-American repertoire in videos broadcasted by YouTube in 127 countries across Europe, the Middle East, Africa and Asia. The deal, however, does not include the United States. This agreement, which commences on 1 January 2013, covers all types of videos broadcasted by YouTube, including user-generated content.
In its public announcement, SACEM explained that “This agreement enables greater transparency, due to better coordination in the exchange of data, while ensuring a fair remuneration of the right holders who are entitled to a share of the revenues generated by the platform". However, the rights of authors and composers of Universal Music Publishing who are members of other European collecting societies remain subject to the agreements entered into between YouTube and the relevant collecting societies.
SACEM explains that the agreement was entered into as part of DEAL (Direct European Administration and Licensing), a joint initiative of SACEM and UMPI for the creation of an entity to deliver multi-territorial licenses for all types of online media.
SACEM has already entered into over 200 agreements for the collection of fees for the broadcasting of music on the internet. These agreements cover a wide range of internet business models, such as downloading, subscriptions for unlimited streaming and free online streaming. The following Internet players have entered into such agreements: Deezer, Spotify, iTunes, Qobuz, Wat, Beezik, Omnifone, Idol, Believe, Nokia, Orange, Yahoo, SFR, etc.
Sunday, 24 March 2013
Brad Spitz interviewed in an article of Les Echos on the Data Protection Officers:
Le CIL: un nouvel acteur au service de la concurrence
Brad Spitz, YS Avocats
Le CIL: un nouvel acteur au service de la concurrence
Brad Spitz, YS Avocats
Tuesday, 5 February 2013
Tuesday, 8 January 2013
Cour de Cassation, 17 October 2012, 11-21641, Codix
There is nothing more subjective, and often arbitrary and unfair, than the notion on which copyright protection is based: originality.
Under French law, the Intellectual Property Code protects “the rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose” (article L.112-1), without giving a definition of originality.
French case law has defined originality as the expression of the personality of the author. European case law validated the French conception of originality, in particular in Infopaq and in Painer (para. 88: "As stated in recital 17 in the preamble to Directive 93/98, an intellectual creation is an author’s own if it reflects the author’s personality").
Where computer programs are concerned, it is however more difficult to focus on the personality of the author, and the French Supreme Court (‘Cour de Cassation’) ruled that originality results from the “author's intellectual contribution” (Pachot) or from the “author's individual contribution” (Isermatic France). This reference to the “intellectual contribution”, instead of the “author’s personality”, reflects a certain shift towards the criterion of novelty, which is used in industrial property law.
In a judgement rendered on 17 October 2012, the French Supreme Court reaffirms this definition and notes that the usefulness of a computer program is not sufficient to characterise the originality of the program.
The computer program concerned in the case was developed to assist French bailiffs in managing their offices. In France, bailiffs ("huissiers") are public officials who, in particular, provide an auxiliary service to the judicial system. The software publisher brought a copyright infringement case against former clients who had continued to use the computer program after the termination of the license agreement. The Court of Appeal of Aix-en-Provence condemned the publisher's clients for copyright infringement. In order to rule that the computer program is original, it merely stated that the program “provides a specific solution to the management of bailiffs' offices”.
The French Supreme Court annulled the judgment. Indeed, the Supreme Court considered that the Aix-en-Provence Court of Appeal breached the law by ruling that the computer program is original, “without explaining why the choices made provided evidence of a specific intellectual contribution and an individual effort by the person who developed the program under litigation, these elements being the only criteria that characterise an original work protected, as such, by copyright”.
This ruling therefore asserts that the usefulness of a computer program cannot be used as a criterion to determine whether a program is original. The French Supreme Court is in line with the European legislation, which provides in article 1 of the directive on computer programs that “A computer program shall be protected if it is original in the sense that it is the author's own intellectual creation. No other criteria shall be applied to determine its eligibility for protection”.
But of course, this does not mean that a useful computer program will not be protected by copyright… This case will now be rejudged by the Court of Appeal of Montpellier, which will have to decide whether the program is original or not, using the classic criteria set out by the Supreme Court: the personal intellectual contribution and the individual effort of the author.