Copyright infringement and remediesInfringing acts
What constitutes copyright infringement?
Copyright is infringed by a person who, without the authorisation of the author or the rights holder, represents or reproduces the work partially or totally.
The same applies to the translation, adaptation or transformation, arrangement or reproduction by any technique or process.
Copyright may be infringed when the moral right of the author is altered (disclosure, integrity, paternity, withdrawal - see question 13).
Civil liability is strict; there is no requirement for the infringer to have any knowledge or intent to commit the infringement.Vicarious and contributory liability
Does secondary liability exist for indirect copyright infringement? What actions incur such liability?
The provision that most closely approximates contributory liability is Article L 335-2-1 of the IPC. Thus, the editing, making available to the public or communicating to the public of a piece of software obviously intended to make sound recordings available to the public without authorisation is prohibited and is a criminal offence. The Criminal Code also includes the concept of complicity, which is equivalent to the figure of contributory infringement. The accomplice of a criminal offence (including felonies against copyright) stands for anyone who knowingly abets, facilitates or by means of a promise, threats or abuses of authority, provokes the offence or gives instructions to commit the offence.Available remedies
What remedies are available against a copyright infringer?
Several remedies are available against a copyright infringer, including in particular:
- award of monetary damages (see question 41);
- injunction (final or preliminary) to refrain from infringing;
- precautionary seizure order of the capital assets and real estate of the alleged infringer (at the pretrial stage);
- injunction to disclose all the information regarding the distribution networks and the quantities of infringing products;
- recall from the trade circuits, destruction or confiscation for the benefit of the victim, of the following elements: the objects made or manufactured in breach of the rights of the victim, the media used to extract unlawfully data from a database, and the equipment predominantly used for the manufacture;
- publication of the judgment (in whole or in part) at the defendant’s costs; and
- award of legal costs.
Is there a time limit for seeking remedies?
The statute of limitations for bringing a copyright infringement claim is five years from the date on which the claimant became aware or ought reasonably to have become aware of the infringing act.Monetary damages
Are monetary damages available for copyright infringement?
Monetary damages are available for copyright infringement. The court must take into account, separately:
- the negative economic consequences of the infringement, including loss of profits and loss suffered by the injured party;
- the moral prejudice caused to the rights holder; and
- the profits made by the infringer, including savings in intellectual investment, equipment and promotion, which the infringer made through the infringing acts.
French law also offers an alternative to the assessment of the damages. Indeed, upon request of the claimant, the court may award damages in a lump sum. This amount shall exceed the amount of royalties that would have been due if the infringer had requested the authorisation to use the right that was infringed. This amount is not exclusive of compensation for the moral prejudice caused to the injured party.Attorneys’ fees and costs
Can attorneys’ fees and costs be claimed in an action for copyright infringement?
Attorneys’ fees and costs may be claimed in an action for copyright infringement. Usually, the attorney will provide the court with an affidavit of the fees invoiced for the whole proceedings. However, in practice and despite the aforementioned affidavit, the sums discretionarily allocated by French courts are low.Criminal enforcement
Are there criminal copyright provisions? What are they?
Copyright infringement amounts to a criminal offence when committed with malice.
In addition, specific criminal offences exist. For instance, the following are criminal offences:
- For the owner of an access to online public communication service not to have implemented security measures to ensure that such access is not used for the reproduction or communication to the public of works protected by copyright without the consent of the copyright owners, provided that the owner of such access has been advised by HADOPI to implement a security system following a first infringement having taken place less than one year before (articles L 336-3 and R 335-5 of the IPC).
- The editing, making available to the public or communicating to the public of a piece of software obviously intended to make sound recordings available to the public without authorisation (see question 38).
- To hold for private use or use a technological application, device or service aimed at infringing digital rights management (DRM) which protects a work (Article R 335-3 of the IPC).
Are there any specific liabilities, remedies or defences for online copyright infringement?
Several provisions were created to deal with online copyright infringement. Examples follow.
The graduated response regime from the HADOPI
The HADOPI Laws No. 2009-669 of 12 June 2009 and No. 2009-1311 of 28 October 2009 and Decree No. 2013-596 of 8 July 2013 define the mission of HADOPI and provide, among other things, a graduated response regime.
It is a criminal offence for the owner of an access to online public communication service not to have implemented security measures to ensure that such access is not used for the reproduction or communication of works protected by copyright to the public, without the consent of the copyright owners, provided that the owner of such access has been advised by HADOPI to implement a security system following a first infringement having taken place less than one year before (articles L 336-3 and R 335-5 of the IPC).
For internet users who continue to show evidence of infringing activity, HADOPI then selects the files to be reviewed and may ask the relevant internet user to participate in a hearing. Only professionals and legal entities are required to attend said hearing.
HADOPI then renders its decision. It can also send files to the public prosecutor for sanctions if the graduated response regime has not led the illicit acts to be put to an end (fine of up to €1,500).
Prevention of illegal downloading and offer
The presiding judge of the court of first instance can order, under penalty, any measure necessary for the protection of copyright where software is being used mainly to offer copyright-protected works illegally (article L 336-1 of the IPC).
Article L 336-2 of the IPC also provides that, in case of copyright and related rights infringement occasioned by the content of an online communication service to the public, rights holders can ask courts to order ‘all appropriate measures to prevent or stop a copyright infringement against any person who may be likely to contribute to such prevention or termination’.Prevention measures
How may copyright infringement be prevented?
Copyright infringement may be prevented by using a copyright notice or implementing technical protection measures.
Article L 331-5 of the IPC provides that DRM consists in technical technologies or devices aiming at preventing or limiting the unauthorised uses. DRM must not prevent the users from benefiting from the exception for private copying and users shall be informed of their use.
Moreover, it is a criminal offence to hold for private use or use a technological application, device or service aimed at infringing a useful DRM which protects a work (fine of up to €750) (article R 335-3 of the IPC).