Background

On October 9 2014 the Paris Tribunal of First Instance issued an interesting ruling on French live streaming platform playtv.fr, which makes TV channel streams freely available on the Internet without authorisation, in this case from plaintiff France Televisions (FTV). Although platform operator Playmedia was seeking an agreement on the basis of the must-carry regime, FTV refused such authorisation, arguing that Playmedia could not benefit from the regime. Playmedia was eventually held liable for breaching FTV's copyright and broadcasting rights, and was ordered by the court to pay €1 million in damages. Playmedia appealed.

Following the first-instance decision, Playmedia changed the way in which FTV's channels were made available on its service to integrate FTV's video player using framing technology, which enabled direct and automatic access to the programmes without leaving Playmedia's website.

In February 2015 the Conseil Supérieur de l'Audiovisuel (CSA), the broadcasting regulatory authority, held that the TV streaming service operated by Playmedia should benefit from the French must-carry regime. Therefore, the CSA considered that FTV was not entitled to refuse to grant Playmedia the authorisation needed to operate its streaming platform lawfully, and eventually issued a formal notice demanding that FTV re-open the negotiations.

Decision

On February 2 2016 the Paris Court of Appeal upheld the first-instance decision, holding Playmedia liable for copyright and broadcasting rights infringement. The court also ruled that although Playmedia had switched to framing technology from November 2014, it was still liable for broadcasting rights infringement.

Must-carry regime

The court held that Playmedia did not meet the conditions required to benefit from the must-carry regime. First, the CSA considered that the service proposed by Playmedia was a subscription service, since users were bound by a contractual agreement contained in the platform's general terms of use and personal information was required to access the service. However, the court noted that the CSA's decision does not bind the courts. It then found that Playmedia did not offer a proper subscription, but rather merely an anonymous registration via an email address or Facebook account.

The court then examined a criterion taken from the EU Telecoms Directive (2002/21/EC): an electronic communication-based service may benefit from the must-carry regime only if a significant number of final users use electronic communication to receive radio or TV broadcasts. Quoting recent CSA studies, the court found that only a small proportion of the French public actually watched live TV on the Web. Therefore, Playmedia could not benefit from the must-carry regime and FTV could refuse to authorise this use of its programmes. In particular, FTV should not be forced to ensure that it has obtained from third-party rights holders all the rights needed for such exploitation. The court even explicitly stated that if the must-carry regime allowed the retransmission of programmes from certain channels, this could be done only with due regard to IP rights.

Communication to public by hyperlinks

In this regard the court followed an interesting approach regarding recent European Court of Justice (ECJ) case law. In Svensson and Bestwater the ECJ considered that posting a hyperlink leading to content made available on the Internet without limitation was not an act of communication to the public subject to the rights holder's exclusive right to authorise. However, the French court found that this harmonisation was made only on the grounds of author rights.

The court then referred to another ECJ ruling (ECJ, March 26 2015, C More Entertainment) which held that national legislation may extend the exclusive right of broadcasting organisations as regards communicating to the public programmes broadcast live on the Internet. As a result, the French court held that the making available of FTV's programmes on Playmedia's website through hyperlinks leading to FTV's own website was an act of communication to the public subject to prior authorisation from FTV as the broadcasting organisation.

Further, the court followed a distinct approach regarding FTV's catch-up TV programmes which were made available on playtv.fr through framing. FTV had challenged such making available on the grounds of parasitism. The courts consequently considered that by maintaining the appearance that FTV's catch-up programmes were made available on playtv.fr, Playmedia should be held liable for unfair competition.

Playmedia was ordered to pay nearly €1.5 million in damages resulting from the first-instance and appeal decisions. The ruling is likely to be challenged before the Supreme Court, which could result in a landmark French decision on the right of communication to the public on the Internet.

For further information on this topic please contact Loïc Fouquet at Nomos by telephone (+33 01 43 18 55 00) or email (lfouquet@nomosparis.com). The Nomos website can be accessed at www.nomosparis.com.

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