CRIMINAL CHAMBER OF THE FRENCH SUPREME COURT, DECISION OF 14 DECEMBER 2010

The Criminal Chamber of the French Supreme Court rendered a decision regarding the criteria to determine jurisdiction of French courts in case of online infringement of intellectual property rights.

In the case at issue, a French rapper became aware that the German subsidiary of his former producer, Universal Music Entertainment GmbH, was still offering for sale his songs on its German website.

After requesting reports by the French Agence Pour la Protection des Programmes (Agency for the Protection of Programs), he instituted infringement proceedings before the French courts, based on his author rights.

The Court of Appeal of Paris upheld the claim, confirming the decision of the court of first instance. It held that it had jurisdiction in cases of claimed online infringement if the online activities have been reported by the Agency of the Protection of Programs. The songs of the French rapper belonged to the French music directory, on the website the song titles were not translated into German, and it was not necessary to understand German to use the icons displayed. Therefore, the Court of Appeal concluded that, even if the website was written in German, it targeted the French public and was consequently infringing the author's rights.

The Criminal Chamber of the French Supreme Court, however, disagreed with the Court of Appeal of Paris. It said that the criteria mentioned did not show that the website run by Universal Music Entertainment GmbH "oriented towards the French public." As a result the Criminal Chamber annulled the decision.

Although the other Chambers of the French Supreme Court, in particular the Commercial Court, previously considered the relevant public as being that sector of the public that is "attracted" by a website, this new decision seems to consider that the relevant public is the targeted public, i.e., the public chosen by the editor of the website. However, the notion of "orientation" of the website was not defined by the Supreme Court.