|We know best
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.