Perhaps the most frustrating way to lose a court case for aparty 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 income. 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 of revenues...
Paternalism, The Courts And French Copyright Law
|Author:||Mr Asim Singh|
|Profession:||Deprez Guignot & Associés|
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