Paternalism, The Courts And French Copyright Law

Author:Mr Asim Singh
Profession:Deprez Guignot & Associés

Perhaps the most frustrating way to lose a court case for a

party is to lose with the court ruling on the basis of what it

thinks is best for you.

A few years ago, there was a striking example of this

paternalistic tendency in the field of intellectual property

law with France's highest judicial court (Cour de

cassation) deciding a case involving the applicability of

the so-called statutory license (authorizing the use of sound

recordings without the consent of performers and producers

against payment of an equitable remuneration) to the television

broadcast of video clips incorporating sound recordings.

Despite the performers' stated position that they preferred

for such use to be covered by the statutory license (as they

would thus be guaranteed payment of a portion of the equitable

remuneration) and not by their exclusive prerogatives, the

Court held that the performers were entitled to the "more

advantageous" exclusive rights regime whereby their

consent was required. The net result of the Court's

solicitude was that, as their exclusive rights were invariably

assigned to the producers (unlike the right to the equitable

remuneration), the performers were deprived of potential


France's highest court in administrative matters (the

Conseil d'Etat) recently handed down a ruling in

the field of copyright law that can be similarly be

characterized as paternalistic (Conseil d'Etat

ruling of July 11, 2008, the SIMAVELEC decision).

France (like many other EU countries) has a private copying

exception to copyright. Under this exception, an author (or

other rights holder such as performer or producer) cannot

object to a copy of his work being made provided that such copy

is strictly for the private use of the person making

the copy. However, in order to compensate authors (as

well as performers and producers) for this, the State decided

in 1985 to impose a levy on the manufacturing and importing of

blank storage devices that can be used to record or store

copyrighted works under the private copying exception.

Initially intended to cover blank audio and video cassettes,

the advent of digital storage devices has led to its extension

to flashcards, hard drives, CD-RW, DVD-R, cell phones,

etc. The amounts levied are paid to collective rights

societies that then allocate the statutorily determined shares

to the various rights holders (authors, performers and

producers). The amounts generated are substantial and account

for a significant portion...

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