Monday 12 November 2012

French Supreme Court Rules on Catch-up TV


A long-running court battle between French FTA television broadcaster M6 (and related entities within the M6 Group) and the publisher of a website that gave access to the broadcaster's catch-up TV sites (without permission) has come to an end.  On October 31st, the French Supreme Court (Cour de cassation) rejected the appeal against the appellate court's ruling in favour of the publisher (decision here).

In addition to broadcasting its over-the-air signal, M6, like most other broadcasters, operates a catch-up TV site accessible via the internet.  SBDS Active published a site called Totalvod TV-replay which lists the programs of various third-party sites including M6's catch-up TV webites (m6 replay and w9 replay) and provides links thereo.  In doing so, the viewer is taken directly to the program, bypassing the homepage of the M6 site (i.e., so-called deep linking).

M6 Group sued SBDS on a number of grounds including copyright infringement.  While the trial court rejected the argument on the substantive ground that making available such links did not constitute public performance, the appellate court and the Supreme Court dismissed the claim on more technical grounds, viz. failure to prove legal standing (copyright ownership in respect of the programs).  In the court's view, the plantiff companies making up the M6 Group appeared to be seeking a collective remedy with respect to a host of programming without clearly spelling out who owned what.  In other words, according to the court, they had failed to establish with sufficient clarity the rights of each plaintiff to each program at issue.

The plaintiffs had also raised the sui generis right vesting in the producer of a qualifed database.  This argument was rejected beacuse they failed to adduce evidence of substantial investment in the database, which is a pre-requisite to such protection.

With regard to the claim made for parasitical conduct, this too was rejected with the court noting that the user was directed to the genuine catch-up website including all its functionalities and adversting.

There is also a discussion of whetehr SBDS was bound by M6's general terms for use of the replay website (with the court concluding in the negative) and a discussion of SBDS's counter-claim in denigration (M6 had  sent a note to media agencies warning of the potential illegality of tv-replay).

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