Deep Links to TV Replay Websites Do Not Infringe Author Rights - Paris Court of First Instance, Decision of 18 June 2010, M6 Group v. SDBS Active

The Paris Court of First Instance provided further guidance on the enforcement of performance and database rights under French copyright law, in particular on the setting up of deep links to TV replay websites.

The French M6 Group (M6) runs the French TV channels M6 and W9. It owns the websites of replay TV www.m6replay.fr and www.w9replay.fr.

SDBS Active (SDBS) had made available to the public the programs of M6's replay TV websites on its websites www.totalvod.com and www.tv-replay.fr via deep links. [Deep links redirect the internet user to specific pages of a website and not to the website's home page - other than normal hyperlinks.]

M6 initiated proceedings against SDBS Active for infringement of its author rights and unfair competition practice. M6 argued that the commercial use of the services of www.m6replay.fr and www.w9replay.fr by SDBS without M6's authorization infringed its author rights, in particular its exclusive performance rights on its TV programs.

The Paris Court of First Instance said that the redirection of internet users to the programs of M6's TV channels on their replay TV websites did not constitute a performance of these TV programs. A performance of a work consisted of the communication of this work to the public by any means. By making the programs of M6 replay and W9 replay available to the public, SDBS Active did not themselves perform the works. By providing a link to view these directly on www.m6replay.fr and www.w9replay.fr (and not on their own websites), SDBS only "helped" the performance of the programs.

The court concluded that the performance rights were only exercised by M6 themselves on their websites www.m6replay.fr and www.w9replay.fr and that SDBS Active did not infringe M6's performance rights.

Furthermore, the court held that SDBS Active did not infringe M6's rights as a database producer of the TV channels. It said that the content of the websites www.m6replay.fr and www.w9replay.fr constituted a collection of audiovisual independent works. It agreed that M6 might have spent money to develop such collection. However, the court found that M6 had failed to provide evidence of substantial investments made in order to constitute, verify and present the databases. Hence, M6 could not enforce any rights thereof.

Finally, the court ordered M6 to pay €30,000 damages on the basis of denigration for sending a letter to media agencies while the proceedings were pending in which it was stated that "TVReplay is a website which redirects the websites of catch-up TV by using, often without the agreement of the TV channels, information about the programs."

Comment

The court adopted a strict position with regard to the enforcement of performance and database rights under French copyright law.

The decision is also a reminder that the parties of pending proceedings should not communicate about these at all or only with most care as such communication might give rise to claims for denigration.