Tuesday 23 December 2014

Some Thoughts on TF1-DailyMotion Ruling from Paris Court of Appeals

This is a follow-up to my previous post on the TF1/DailyMotion ruling from the recent Paris Court of Appeals (see here).

Perhaps the most interesting feature of the ruling relates not to the issue of the liability of DailyMotion as a hosting entity (after all, TF1's argument that it ought to be treated as a publisher of the material posted by its users was a longshot given that various French courts, including the Cour de cassation had already recognized DailyMotion as being entitled to the hoster safe harbour) but to the detailed analysis of the  plaintiffs' standing to sue.

As regards the rights held by the broadcaster qua broadcasting entity, this did not prove very difficult inasmuch as the Court agreed that the on-screen presence of the channel logo sufficed to establish that the content emanated from its signal.

Turning to the issue of standing with respect to the rights in the various works as audio-visual works, the Court proceeds with a work-by-work analysis in order to determine whether the relevant plaintiff  sufficiently established its rights thereto.  What is particularly striking however is that the Court expressly states that such an approach is necessary because:

"...it results from the provisions of Section L.113-7, par.1 of the Intellectual Property Code that an audio-visual work must be categorized as a collaborative work and that TF1, as a legal person, cannot avail itself of a presumption of ownership of an intellectual property right."

In other words, the Court rejects the reliance on a presumption because the work at issue is an audio-visual work and under French law an audio-visual work is, by statute, a collaborative work among natural persons (such as director, screenplay writer).

While the Court is quite right that Section L.113-7, par.1 IPC (at least as interpreted by most courts and a majority of legal scholars) provides that audio-visual works are works of collaboration among natural persons, it is somewhat surprising that this fact leads the Court to reject the possibility of relying on a presumption of ownership.

French case-law has, since 1993, recognized a presumption of ownership in copyright protected works in favour of legal persons (acting against third parties in infringement proceedings) provided that the legal person can establish acts of commercialization of the work under its name and provided further that there are no adverse claims from the actual natural peron authors.  This presumption has been applied in all kinds of situations and it has been expressly held that it applies irrespective of the legal categorization of the work i.e., whether or not it is a collective work (being a work the rights to which can vest ab initio in a legal person).

In this ruling the Court of Appeals appears to be rejecting this understanding of the applicability of the presumption and limiting its applicability to cases where the work is not a collaborative work.  This reasoning seems to be based on the fact that the statute defines collaborative works as works created by natural persons.

The decision thus highlights the tension between the seemingly broad application of the presumption as stated by the courts to date and the specific nature of audio-visual works and other collaborative works (limited to natural persons).  Given the original rationale for the presumption (to facilitate actions against infringers and to avoid complicated issues related to standing) and the previous recognition that it is to apply irrespective of the legal categorization of the work, it seems to me that the Court's approach to the presumption in this instance is overly restrictive.

Happy Holidays!

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