French Ruling on Internet Re-transmission of TV Channels

How do you say Aereo in French?

On October 9th, the Paris High Court issued an interesting ruling in a case involving the internet simultaneous, full re-transmission of various channels broadcast by French public broadcaster France Télévisions (FTV).

Playmedia laucnhed a web-based service called playtv giving users free access to various television channels, including those offered by FTV.  It did so without any contractual agreement with FTV as it was relying on the must carry regime applicable to FTV channels.

After having failed to convince the Conseil Supérieur de l'Audiovisuel (regulatory body overseeing television in France) of the merits of its argument that the must carry regime allowed (or rather required) it to carry the FTV channels, the matter was brought to the Court.

The CSA rejected Playmedia's claim in July 2013 pointing out that the the must carry provisions of the Communications Act of 1986 referred to distributors who have "susbscribers" and given that this was not the case  for playtv, it could not rely thereon.

Before the Court, FTV justified its refusal to allow the re-transmission of its channels by arguing that its agreements with its own content providers (producers) expressly prohibited open internet re-transmission such as that being proposed by playtv and that black outs (of the affected programming) was not possible as the result (a partial re-transmission) would be inconsistent with FTV's public mission.

Playmedia attempted to argue against this by contending that the provisions of the 1986 Communications Act (regarding must carry) constituted an exception to the provisions of the Intellectual Property Code.  In other words, Playmedia was argiung that, assuming that the must carry rules applied, they could not be avoided by the broadcaster due to intellectual property concerns (i.e., lack of rights clearance).  The Court rejected this argument, pointing out that the list of exceptions to copyright set out in the 2001 InfoSoc Directive is exhaustive and that no mention of any such exception is made.

As regards the applicability of the must carry rules, the Court addressed this issue on the basis of the revamped playtv service which offered short excerpts of the channels to non-subscribers but required a subscription for full access (thereby dealing with the CSA's objection, at least in Playmedia's view).  The Court was not however convinced that this procedure was genuine inasmuch as the subscription form did not require a verified identity and address.  For this reason (and others), the Court held that Playmedia could not rely on the must carry rules.

In light of these findings, the Court found that Playmedia was infringing FTV's neighbouring rights in its signal, copyright in certain programming and the producer's neighbouring right in certain videograms (video recordings) as well as infring its trademarks and ordered it to pay €1 M in damages (for the copyright and neighbouring right infringements) and €25,000 in damages for trademark infringement.

The ruling is online (in French):  here