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Global Media and Communications Watch The International Legal Blog for the Tech, Media and Telecoms Industry
Posted in Broadcasting, Internet Winston MaxwellCamille Pecnard

French Court: Important ruling on ‘must carry’ override issue in real-time streaming case

BXP25363h_mainLeaving in place the lower court’s €1million damages award, the Paris Court of Appeals recently held that the live streaming website “PlayTV” infringed both the broadcaster’s “neighboring rights” in the broadcast, and the copyright in the underlying programs. This part of the decision is not a surprise. It confirms that picking up broadcast signals, and making the programs available via streaming, requires authorization of the broadcaster.  “PlayTV” had argued that it had the right and obligation to retransmit the signals under France’s “must-carry” rules.  The court disagreed, pointing out that “distributors” under French law must enter into contracts with broadcasters, even when the signal is covered by “must carry” obligations.

“Play TV” originally based its business model on the fact that it could qualify as an audiovisual distributor under French law, and therefore use “must carry” obligations as a means to stream France’s public service channels without permission of the broadcasters. France’s media regulator, the CSA, interpreted France’s must carry rules as implicitly imposing a “must offer” obligation on public broadcasters. In other words, broadcasters could not refuse a retransmission by a distributor. After an unfavorable decision by the CSA, the operator of the PlayTV platform modified its user interface to require users to create an account. The CSA said this satisfied the must-carry obligations, and sent a notice to the public broadcaster, France Televisions, asking France Televisions not to object to the Play TV retransmission.

The Paris Court of Appeals disagreed with the CSA’s approach, holding that France’s must carry obligations do not override copyright and neighboring rights. The distributor must still enter into a contract with the public service broadcaster, and the latter is entitled to refuse. The court underlined that the must-carry provision should be narrowly interpreted, as required by the Universal Service Directive 2002/22/EC.

The operator of the PlayTV site also modified its platform just after the lower court decision of 9 October 2014 so that the site no longer retransmitted the France Televisions signal, but instead included an inline link (“transclusion”) of France Televisions’ own streaming site. That way, PlayTV hoped to take advantage of the new CJEU decisions holding that hyperlinks are not infringements because there is no communication to a “new public”.

However, French and European case law is not settled on the issue of hyperlinks and linking. This is also a hot topic worldwide and is currently debated by IP associations, like AIPPI this year (2016 World Congress in Milan – from September 16 to September 20).

Many decisions were issued during the last decade. Among the most important ones, the French Supreme Court ruled that hyperlinks constitute acts of infringement in a case involving the service of Google Video France offering videos hosted on third parties’ websites (French Supreme Court, 12 July 2012, 2 decisions, No. 11-13.666 and 11-13.669, Google vs. Bac Films).

Subsequently, the European Court of Justice denied infringement for acts of framing content already available on the Internet, as long as there is no communication to a new public (CJEU, 21 October 2014, C-348/13, BestWater). According to the Svensson decision, “Article 3(1) of Directive 2001/29 must be interpreted as meaning that the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public”, which works in favour of PlayTV’s linking model.

The CJEU decisions made the assumption that the public to whom the linking was directed, i.e. “all Internet users”, was the same public to whom the work was made available by the copyright holder.

In the PlayTV case, the court found that inline linking to the broadcaster’s own streaming service constituted an infringement of the broadcaster’s “neighboring rights”. The court found that the CJEU decisions on linking did not apply to broadcasters’ “neighboring rights” because those rights do not arise under the EU InfoSoc Copyright Directive.  Consequently, PlayTV’s linking to the broadcasters’ own streaming service via “transclusion”, without the broadcaster’s permission, infringed the broadcaster’s neighboring rights under French law.

The Paris court’s decision, which may still be appealed to the French Supreme Court, applies a narrow interpretation to the CJEU decisions on linking, holding that they only apply to copyright. Broadcasters may rely on their “neighboring rights” to object to inline linking to the broadcasters’ own streaming websites.