The pain of the the plaintiff: what a performance

A recent case note sheds light on a ruling of the Paris Court of First Instance on 8 June on the enforcement of performance and database rights under French law.

The companies in the M6 Group included the French television channels M6 and W9 and the television replay websites www.m6replay.fr and www.w9replay.fr. M6 instituted proceedings for author's rights infringement and unfair competition against SDBS Active, which had made available to the public on its www.totalvod.com and www.tv-replay.fr websites, through deep hyperlinks, a number of programmes that it had placed on its own replay websites  M6 considered that the commercial use of the services of its two sites by SDBS Active infringed its exclusive performance right since SDBS Active was making M6's programmes available to the public without its authorisation.

The Paris Court of First Instance ruled that the redirection of an internet user to a window showing a television programme did not constitute performance of that television programme. In its view, 'performance' consisted of the communication of a work to the public through any process. By making the M6 and W9 replay programmes available to the public, SBDS Active did not itself perform the works, but rather helped the public by providing a link to view them directly on the original websites, not on its own websites. Accordingly performance was thus carried out by the two M6 websites, not by SDBS Active.

Further, even by providing such links SBDS Active still did not breach M6's rights as a database producer. The content of the two websites constituted a collection of audiovisual independent works. M6 might have spent money on the development of such collection, but that company furnished no evidence of making substantial investment in order to establish, verify and present the databases at issue.

In a curious twist, the court ordered M6 to pay €30,000 in damages for disparagement since, in the course of the proceedings, M6 sent a letter to media agencies stating 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 programmes".

Source: "Online TV replay and author rights", article by Marie-Aimée de Dampierre and Camille Pecnard (Hogan Lovells) for International Law Office, 11 October 2010