On 4 July 2019, the French Supreme Court ruled in favour of France Télévisions in a long-term dispute against Playmédia. Playmédia offers live and subscription-free streaming of television channels on its website PlayTV.fr, including the programmes of France Télévisions. France Télévisions claimed that Playmédia infringed (inter alia) its copyright and neighbouring rights by broadcasting its programmes online without its authorisation.
Playmédia claimed that it was subject to the ‘must-carry’ principle, and was therefore obliged to broadcast France Télévisions’ programmes. In its judgment of 4 July, however, the French Supreme Court ruled that Playmédia’s service did not meet the criteria set out in the French legislation in order to benefit from the must-carry rule. Indeed, in accordance with the Act of 30 September 1986, the must-carry obligation applies to distributors of audio visual communication services that are in a contractual relationship with the editor of such services, which was not the case here. Also, the must-carry obligation only applies to subscription-based services, whereas Playmédia provided its services free of charge and on the basis of an anonymous online registration.
The French Supreme Court then cited Playmédia’s technique of deep linking, via which France Télévisions’ programmes could be watched directly on Playmédia’s website. The French Supreme Court pointed out that Article 3(2)(d) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (Directive 2001/29/EC) requires Member States to provide for the exclusive right for broadcasting organisations to authorise or prohibit “the making available to the public of fixations” of their broadcasts, referring to interactive on-demand transmissions. However, with reference to the CJEU’s C-More judgment (case C-279/13), the Supreme Court continued that neither this provision nor any other provision of the Directive seeks to harmonise national legislations as regards the extent of the protection which the Member States may grant to the broadcasting organisations referred to in Article 3(2)(d) with regard to certain acts which are not expressly referred to in that provision. Member States may thus extend broadcasters’ exclusive rights referred to in Article 3(2)(d), provided that such an extension does not undermine the protection of copyright. Hence, the Court of Appeal could rightly decide, on the basis of Article L. 216-1 of the French IP Code (which subjects the reproduction and broadcasting of programmes to the broadcasters’ authorisation), that France Télévisions had the exclusive right to authorise making its programmes available to the public online.
Finally, with regard to the fact that Playmédia enabled web users to access via hyperlink “catch up” programmes broadcasted on France Télévisions’ website, the French Supreme Court ruled that the fact that web users had to go through several pages with Playmédia’s logo and without any reference to France Télévisions’ website, and watch an ad before reaching the “catch up” site, was confusing for the web users and therefore constituted an act of unfair competition.
Please contact Karel Janssens for further information on this matter and/or for general legal advice relating to IP and media law.