In a lengthy (by French standards at any rate: 34 pages) decision handed down yesterday (May 29), the Paris High Court dismissed French broadcaster TF1's lawsuit against YouTube.
The suit dates back to 2008 and involves numerous clips from TF1 (and related entities) that were posted on YouTube. A group of plaintiffs (all part of the TF1 Group) brought an action against the Google subsidiary alleging copyright infringement, infringement of so-called related (or neighbouring) rights, trademark infringement, unfair competition and parasitical conduct.
The first issue addressed by the Court was the admissibility of the action as regards standing. The Court addresses each type of IP right separately (related right attributed to a broadcaster, related right attributed to a producer, copyright). As regards copyright and the related right attributed to the producer, the plaintiffs were held to lack standing inasmuch as they failed to adduce the requisite evidence of their rights. As regards the related right attributed to broadcasters (Section L.216-1 Intellectual Property Code or IPC), TF1 was found to have standing with respect to seven sports programs that were actually broadcast prior to their appearance on YouTube. On this point, the Court gives careful consideration to the nature and scope of this oft-neglected related right. It confirms that the right is intended to proect the broadcasting entity's investment and the right covers the programs as broadcast in the signal.
Having found a very limited standing to sue, the Court went on to address the issue of YouTube's proper characterization. Applying recent CJEU and French Supreme Court case-law, it had no difficulty finding that YouTube qualified as a mere hoster (as opposed to publisher) of the content posted on its site by its users. Consequently, its liability could only be assessed in light of the relevant provisions relating to hosting entities. On this specific point, while the Court did agree with plaintiffs that the five-day delay in removing the infringing content after notification was unreasonable, it nevertheless held that there was no liability because it felt that the conditions of Section L.216-1 IPC were not satisfied due to the fact that access to the site was free.
With all due respect to the Court, this last conclusion seems erroneous. Leaving aside the question of whether the mere fact that the removal delay was unreasonable is sufficient to incur liability, Section L.216-1 IPC clearly contemplates an infringement where programs (as broadcast) are telecast ("télédiffusion" in French) OR communicated to the public in a place open to the public in exchange for an entrance fee. In other words, while the right of communication to the public associated with this related right is narrower than the corresponding right under copyright, the difference is only relevant in cases of communication to the public OTHER THAN telecasts. Given the broad definition of telecasts in the IPC (Section L.122-2), it is clear that YouTube was telecasting the programs and therefore infringing the Section L.216-1 related right, irrespective of the issue of free or paid access to the site.
After dismissing the claims based on trademark infringement and unfair competition and parasitical conduct, the Court ordered TF1 to pay YouTube €80,000 in costs.
Beyond the error referred to above, the Court makes a rather odd comment about TF1 being unable to invoke both its Section L.216-1 related right and copyright simultaneously. The Section L.216-1 related right protects the broadcaster's programs as embodied in the signal that is broadcast whereas copyright protects the underlying work. Contrary to the Court's assertion, there is no legal principle that would prevent a party from invoking both grounds simultaneously; the two rights are independent of one another and protect different subject-matter (the programs in the signal in one case and the work in the other). As regards the Court's analysis of standing under copyright, it is striking that it makes no reference to the longstanding judge-made rule that use of a work in the absence of adverse claims by the natural person authors cerates a presumption of copyright ownership vis-à-vis third-parties accused of infringement (in fact the Court actually expressly cites Section L.331-1, paragraph 3 IPC in this context, a provision which deals solely with related rights).
TF1 has stated that it is currently studying the decision and considering its options.