For a variety of reaons (added burden of proof in having to show bad faith, turning over control of the case to a public prosecutor) criminal copyright decisions by the Supreme Court (Cour de cassation) tend to be less common than civil infringment decisions in France. One such ruling came on November 29, 2011 and, what's more, involved issues of private international law, making it all the more noteworthy.
An Italian national took the liberty of reproducing an article written by someone else (also Italian) for the French daily "Le Monde" and publishing it in the paper and electronic versions of the Italian newspaper "Il Foglio". Criminal copyright infringement proceedings ensued and before the trial court the accused argued that French courts did not have jurisdiction (as the infringing acts occurred in Italy in his view). The trial court disagreed and found him guilty. This was upheld on appeal. In a decision handed down in 2008 the Cour de cassation reversed and faulted the appellate court for not having verified that the infringement had actually occurred in France and remanded the case back to the Court of Appeal.
In its subsequent decision of November 2009, the Court of Appeals, noting that Le Monde was a French entity, again held that French courts had jurisdiction and affirmed the trial judgment. Its reasoning was based on Section 113-7 of the French Criminal Code which provides:
"French criminal law applies to any crime as well as any misdemeanour punishable by imprisonment committed by a French national or by a foreigner outside the territory of the Republic where the victim is a French national at the time of the infraction."
In its most recent ruling, the Cour de cassation again reversed, stating that under the Berne Convention (article 5.2) the protection afforded an author is determined by the law of the state where such protection is sought, which means the law of the State on whose territory the infringing acts took place and not that of the state where the harm was suffered. Moreover, it stated, the commission of the infraction on the territory of the Republic is a constituent element of the infraction. The Court therefore found that given that the infringement occurred outside of France the Court of Appeal had misapplied the aforementioned principle.
The Cour de cassation's dicta regarding the meaning of the rule laid down in article 5.2 of the Berne Convention is of particular interest because a number of recent rulings by lower courts have suggested that the rule allowed for application of either the law of the State where the alleged infringment occurred or that of the State where the harm was suffered. It will be interesting to see how the lower courts interpret this most recent pronouncement by the Supreme Court on this point (bearing in mind the particular context of this case (criminal) and the fact that there is no principle of binding stare decisis in French law).