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Broadcasting of television programs: French court clarifications on “must carry” and framing

On July 4, 2019, the Cour de Cassation specified the criteria of the “must carry” obligation (diffusion of broadcasted public channels, governed by Article 34-2 of Law No. 86-1067 of September 30, 1986) and the regime of “framing” in the case of neighbouring rights of an audiovisual communication company. Framing is the division of a webpage into several frames to display elements from other Internet pages by means of an “in line linking” which conceals the elements’ original environment.

Background

Playmédia was sentenced on appeal notably for author rights and neighbouring rights infringement, on the grounds that it broadcasted France Télévisions programs live, for free and without any subscription on its website. Playmédia was sentenced for doing so without authorization and proceeded to appeal before the Cour de cassation.

Decision

First, the Court states that, on December 13, 2018, the European Court of Justice (CJEU), upon consultation by the Conseil d’Etat, had indicated that “an undertaking which offers the live streaming of television programmes online must not, based on that fact alone” be subject to the “must-carry” (Case C‑298/17, France Télévisions SA v Playmédia, Conseil supérieur de l’audiovisuel (CSA)). The Court approves the appeal judge’s statement that the criteria of the “must carry” obligation are not filled in this case for the following reasons:

  • There is no contractual relation between the distributor of services of audiovisual communication (Playmédia) and the publisher of these services (France Télévisions). Playmédia’s statement to the CSA, as a distributor of television services on a network not using a frequency assigned by the CSA, is irrelevant in this respect.
  • There is no subscription system to access the services of Playmédia. A simple provision, free of access and conditioned to anonymous registration, is not sufficient. Thus, the Court of Appeal could validly infer that Playmédia cannot rely on the “must carry” obligation and infringes France Televisions’ author rights and neighbouring rights as producer of videograms. In this regard, on July 24, 2019, the Conseil d’Etat allowed the appeal claiming that the CSA acted beyond its powers on July 23, 2013 when it had rejected the request to see Playmédia enjoined to stop broadcasting the services it publishes. The Conseil d’Etat indicated that according to Article 34-2 of Law No. 86-1067, in light of the preparatory works of this law, the notion of subscribers, which is a criteria of the “must carry” obligation, must be understood as users linked to the distributor of services by a commercial contract providing for the payment of a price. It goes on to observe that access to the service of Playmédia is not subject to the payment of a price and thus cancels the CSA decision.

Secondly, Playmédia argued that its service was lawful based on the CJEU’s case-law on author rights according to which making available a protected work, freely available on a website, on another website by means of clickable links or a link using the framing technique cannot be described as a “communication to the public” within the meaning of Article 3(1) of Directive 2001/29/ EC of 22 May 2001 (Case C-466/12, “Svensson” & C-348/13, “BestWater”). The Cour de Cassation agrees with the Court of Appeal’s holding that these decisions do not apply to neighbouring rights of audiovisual communication company. In fact, the Cour de cassation confirms that if:

the EU legislature sought, firstly, to harmonise further the author’s right of communication to the public and, secondly, to overcome the legal uncertainty regarding the nature and the level of protection of acts of on-demand transmission by providing for harmonised protection at Community level for that type of act (…) neither Article 3(2) of Directive 2001/29 nor any other provision thereof states that the EU legislature sought to harmonise and, in consequence, prevent or remove any differences between the national legislations as regards the extent of the protection which the Member States may grant to the holders of the rights referred to in Article 3(2)(d) with regard to certain acts (…) which are not expressly referred to in that provision

(Case C-279/13, C More Entertainment AB v Linus Sandberg, points 30 and 31)

Now, under Article L. 216-1 of the French Intellectual Property Code, France Télévisions has the exclusive right to authorize the reproduction and broadcasting of its programs. Consequently, the appeal judges could validly sentence Playmédia for infringement of neighbouring rights of audiovisual communication company.

Comment

This decision demonstrates that audiovisual communication distributors must have a clear understanding of limitations of the “must carry” obligation and “framing” for the distribution of third party content.