Friday, 27 September 2013

Setback for SPEDIDAM in France

We know best
On September 11th last, SPEDIDAM, the French collecting rights body for (lead) performers (beneficiaries of a so-called neighbouring right) suffered an important setback.  Having noticed that Fnac (the French retailer) was offering various sound recordings for paid downloading, SPEDIDAM brought legal proceedings arguing that such a use required the prior authorization of the performers (under Section L.212-3 of the Intellectual Property Code) notwithstanding the fact that authorization had already been given for the fixation and marketing of phyisical media (vinyl, CDs).

SPEDIDAM was arguing that the applicable statutory provisions relating to perfomers' rights were to be interpreted as requiring separate authorizations for the marketing of physical media and on-demand downloads.

The Cour de cassation (Supreme Court) affirmed the appellate ruling in favour of Fnac.  The Court noted that while pursuant to Section L.212-3 of the IPC the performer must authorize public communication of his performance, the Court of Appeal had found that, according to the information on the signed attendance sheets, the performers had authorized the exploitation of the recording of their performances as "sound recordings published for commercial purposes". 

The Supreme Court held that the Court of Appeal had correctly held that the legal characterization as sound recording (phonogramme) was independent of the existence of a tangible medium such that the relevant authorizations given by the performers covered the making available to the public by means of downloading for pay.

In other words, a "sound recording" (or "phonogramme" in French legal parlance) is not dependent on there being a tangible medium.  In authorizing the creation and publication of a sound recording based on their performances, the performers were in effect authorizing both offline and online commercial use.

The ruling also contains some interesting discussion on SPEDIDAM's standing (or lack thereof) to bring such proceedings.

The decision can be found here in French.
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1 comment:

  1. FrenchKat30 September 2013 at 10:17

    I just wanted to add two points. Firstly, this ruling deals with performer's neighbouring right not copyright per se. If the question had arisen with respect to copyright, it is inconceivable that such an expansive interpretation of the authorization/license would have been adopted. Secondly, the Court here appears to have conflated two separate and distinct issues: (i) whether or not a tangible medium is required for there to exist a phonogramme (with a rather obvious answer in the negative) and (ii) the proper scope and construction to be given to the license granted by the performers.

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