Private Copying Remuneration Law in France

Just published in the Official Journal of the French Republic of December 21, 2011 is Act #2011-1898 of December 20, 2011 respecting private copying remuneration.

As previously indicated, this bill (now law) amends the French regime applicable to private copying remuneration in three significant ways:

1- in a nod to a 2008 decision by the Conseil d'Etat, it provides that the remuneration is only due in respect of copying done from a "lawful source"; 

2- in a nod to the CJEU's Padawan ruling and a June 2011 decision by the Conseil d'Etat, it provides that such remuneration is not due in respect of media acquired for professional purposes; and 

3- it requires that the amount of the levy applicable to a given medium be brought to the purchaser's attention at the point of sale.

Regarding point 2, publication of the Act was followed two days later (December 23rd) by publication of Ministerial Order (arrêté) of December 20, 2011 with the form to be used to obtain reimbursement.

Of particular note is the fact that the Act (unlike the bill - some might say rather surreptitiously) actually steps beyond the narrow issue of private copying remuneration and re-defines the parameters of private copying itself. It amends Sections L.122-5 (copyright) and L..211-3 (neighbouring rights) of the Intellectual Property Code by expressly requiring that the copying be from a "lawful source" in order to qualify as a private copy (thus bringing the French regime closer to that already in force in Germany).

Private copying levy: societies "did not do enough", rules French court

From 1709 Blog team member Asim Singh (Cabinet Singh, Paris) comes this news:

"In a fascinating decision handed down by the Paris High Court (Tribunal de Grande Instance de Paris) on 2 December the Court found Sorecop and Copie France (since merged), the two entities responsible for collecting the private copy levy, negligent. The court ordered them to pay 1 million euros to Rue de Commerce.

The issue arose with respect to the so-called “grey market” i.e., the market in which French consumers purchase, via foreign EU-based websites (states that do not apply a levy or apply a lower one than that which is applied under French law), media subject to the levy. Unhappy about the uneven playing field this creates, Rue de commerce filed an action in unfair competition against certain such foreign operators. After several years of litigation, the French Supreme Court (Cour de cassation) dismissed the action holding that these foreign vendors were neither manufacturers nor importers of the media (nor consumers) and were therefore not liable for payment of the levy. The Court added that they did however have the duty to inform the French consumer of his obligation to pay the levy.

Following this decision, Rue de commerce decided to sue Copie France and Sorecop. It argued, first, that they were not ensuring payment of the levy from the consumers who were purchasing media on the grey market and, secondly, that they were not doing enough to harmonize the levy rates applied across Europe (given that their representatives formed a majority on the private copying commission). The Paris High Court referred to the recent Opus ruling by the Court of Justice of the European Union (June 16, 2011) where the CJEU held :

“Directive 2001/29 ..., in particular Article 5(2)(b) and (5) thereof, must be interpreted as meaning that the final user who carries out, on a private basis, the reproduction of a protected work must, in principle, be regarded as the person responsible for paying the fair compensation provided for in Article 5(2)(b).
However, it is open to the Member States to establish a private copying levy chargeable to the persons who make reproduction equipment, devices and media available to that final user, since they are able to pass on the amount of that levy in the price paid by the final user for that service. 

Directive 2001/29, in particular Article 5(2)(b) and (5) thereof, must be interpreted as meaning that it is for the Member State which has introduced a system of private copying levies chargeable to the manufacturer or importer of media for reproduction of protected works, and on the territory of which the harm caused to authors by the use for private purposes of their work by purchasers who reside there occurs, to ensure that those authors actually receive the fair compensation intended to compensate them for that harm. In that regard, the mere fact that the commercial seller of reproduction equipment, devices and media is established in a Member State other than that in which the purchasers reside has no bearing on that obligation to achieve a certain result. It is for the national court, where it is impossible to ensure recovery of the fair compensation from the purchasers, to interpret national law in order to allow recovery of that compensation from the person responsible for payment who is acting on a commercial basis.”

The Court held that, as direct collection from consumers was materially and financially unfeasible, the collection bodies ought to have taken action against the foreign sites. The Court pointed out that they should have brought proceedings for failure to inform French consumers
adequately of their liability to pay the levy. The Court states that 

“tasked by the French State to collect this remuneration in favour of authors and bound to fulfil this mission in compliance with Community law, Sorecop and Copie France, once they determined that there was a distortion of competition and loss of remuneration for authors due to the foreign vendors, should have, by taking collection action, if necessary judicial, for the private copying remuneration against these foreign distributors, sought the necessary interpretation of French law on the quality of the person liable for payment of this remuneration”. 

The Court also agreed with Rue de commerce that the two collection bodies could have done more to encourage harmonization of the levy rates across Europe in order to fight the grey market in light of their dominant position within the private copying commission.
The Court concluded that the two collection bodies had been negligent (within the meaning of the general tort in the Civil Code) and that their negligence had caused Rue de Commerce a loss of chance to limit or eliminate the grey market and awarded it 1 million euros by way of damages".

There's a link to the Paris High Court decision here

Remuneration for private copying: changes in store for French rights holders

The 1709 Blog is delighted to receive this piece of information from Paris-based intellectual property practitioner and enthusiast Asim Singh (asingh@leolex.fr) on a topic that seems to attract a lot of attention in continental Europe -- remuneration for private copying. As Asim explains:

"The French government recently (October 26, 2011) tabled a bill (projet de loi) related to the remuneration for private copying. 

Like many other European jurisdictions, France applies a levy to blank media capable of being used for private copying (cassettes, CDs, DVDs, hard drives, etc.), defined by Section L.112-5 of the Intellectual Property Code as “copies which are strictly reserved for the private use of the copier and not intended for a collective use”. 

The so-called Private Copy Commission (made up of representatives of rights-holders, consumers and consumer electronics companies) determines the media subject to the levy and sets the applicable levy rate. The monies are paid by manufacturers and importers of subject media who in turn pass on the ultimate burden to the consumer who acquires the subject media. The monies are collected by Copie France which, after deducting a portion earmarked for subsidizing creative efforts, live shows and training artists, passes the balance on to the beneficiaries (authors, performers, producers and publishers), according to a pre-determined key. 

The system has been in place since 1985 but two recent rulings by the Conseil d’Etat (French Supreme Court for administrative matters) have led the government to act to modify the statutory scheme. 

In a July 11, 2008 decision regarding applicable levy rates, the Conseil d’Etat held that the remuneration owed for private copying had to be tied directly to the scope of private copying from lawfully acquired sources. In other words, the potential for a given media to be used for private copying from unlawfully acquired sources (e.g., peer-to-peer networks) was not relevant in determining the applicable levy rate. 

In a June 17, 2011 ruling, the Conseil d’Etat applied the recent Padawan decision of the Court of Justice of the European Union (October 21, 2010) and held that media acquired for professional purposes could not be presumed to be intended for use for private copying and hence should not be subject to the levy. The bill tabled by the government takes these developments into account and proposes to amend the Intellectual Property Code accordingly. 

In addition, the bill mandates that the media acquired by a consumer and subject to the levy be accompanied by information regarding the amount of the levy applicable to it".

High Yield French Stocks

Investors keep hearing about the financial problems of Portugal, Spain, Ireland, Italy, and Greece. However, France is making major moves to strengthen its economy and reduce its large national debt. After all, the country doesn't want to end up like one of the PIIGS.

There are plenty of investment opportunities in French stocks, and according to WallStreetNewsNetwork.com's recently updated list of stocks based in France, there are ten that pay yields in excess of 1%. .

For example, France Telecom (FTE) is the largest telecom company in France and the third largest in Europe. The stock has a price to earnings ratio of 9.8 and a forward PE of 9.1. The Price Earnings Growth ratio is a reasonable 1.06, and the yield is an incredible 6.1%.

Sanofi-Aventis (SNY) is the Paris based pharmaceutical company which has products that include Plavix, Ambien, Allegra, and Nasacort. The PE is 10.1 with a forward PE of 6.9. The yield is decent 3.3%.

Veolia Environnement S.A. (VE) is a conglomerate involved in four businesses: water and wastewater services, environmental services, energy services, and bus, train, and ferry transportation services. The PE is 14 with a forward PE of 15.7. The PEG is an excellend 0.99 and the yield is a nice 4.1%.

To see a list of the rest of the French stocks that trade in the US, which you can download, sort, and update, go to WallStreetNewsNetwork.com.

Disclosure: Author did not own any of the above at the time the article was written.

By Stockerblog.com

Smoothstone’s Converged IP Cloud Expanding To Europe

Smoothstone IP Communications, an innovator in the new field of cloud-based unified communications, is expanding its service portfolio to include European locations. Could this be the start of a cloud that covers the Earth?

You bet it is. Thanks to international MPLS connectivity, it is now feasible to port any IP service to anywhere on Earth. That’s the beauty of MPLS networks. They take whatever you’ve got and transport it anywhere users can connect to the network.

Well, it’s not quite that simple. There’s a matter of scaling involved. Servers that easily handle the load for a limited universe of users in a regional area can become quickly overloaded when a tsunami of new users joins the network from a global footprint. Likewise, the core network has to have the bandwidth needed to handle the increased traffic without degrading latency, jitter and packet loss characteristics.

Smoothstone has addressed these issues, partially by expanding their cloud-based applications platform into several European data centers. That removes a potential bottleneck that could form if all packets needed to be processed through a single U.S. data center. It also makes call termination to off-net European phones easier and less costly.

One of the advantages that Smoothstone touts for moving enterprise voice services to their IP cloud is that internal phone calls stay on the network even when those calls are transatlantic to the UK, France, Germany or Switzerland. It’s only when calls need to be terminated to the PSTN (Public Switched Telephone Network) that connection costs are incurred. The more local the call termination, the cheaper it is. That argues for geographically diverse data centers and central office equipment to support telephony in the cloud.

What is also significant is that Smoothstone is not merely another VoIP service provider. The heart of their competitive portfolio is unified IP communications services. That means converged voice and data services to gain the cost advantages that come from deploying one network among business locations rather that separate telephone and data networks. Convergence can be a tricky proposition for time sensitive applications like network voice. If not done properly, VoIP calls can degrade into clipped and garbled conversations. Calls can even be dropped in extreme cases.

MPLS networking is especially suited to supporting converged voice and data. Not only are multiple protocols supported, but these privately owned and operated networks are carefully managed to ensure Quality of Service (QoS) at all times. For companies that want to unify their communications among multiple locations, it’s hard to argue against a solid MPLS core network. Now smoothstone is taking a leadership position to expand the very same converged services to include European cities. By the end of 2010, they expect to be providing applications and services across Europe.

Is your company still suffering from last century’s networking solutions? Have you been stymied by the process of creating unified communications that delivers the quality of service you require? What you need is the right provider with assets and resources to deliver the right solution for your size of operation and be able to seamlessly scale up as your business level increases. See how Smoothstone and other cloud networking services can provide the connectivity you need at a cost that makes sense.

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