[A2k] TF1 loses copyright battle against YouTube (ILO analysis)

Manon Ress manon.ress at keionline.org
Sat Aug 18 03:58:06 PDT 2012

TF1 loses copyright battle against YouTube

August 16 2012


The Paris Tribunal de Grande Instance recently added to the case law
on the liability of Web 2.0 sites. It confirmed the host status of
YouTube, which came under fire from television channel TF1 and its
subsidiaries (including web subsidiaries) for allegedly making
protected content available online without authorisation.

Although not particularly novel in this respect, the decision reflects
the court's consistency regarding the proof of rights held in the
capacity of assignee or licensee, and joint possession by
co-producers. TF1's claims were dismissed regarding the programmes
that it produced, as the court found that broadcasters may invoke
their authorisation rights only if there is a charge to access their
programmes, which is not the case with YouTube.

The judgment also presented an opportunity for the court to examine
clauses for assigning IP rights regarding posted content which YouTube
imposes unilaterally on web users. It declared these unacceptable -
due to time and space constraints and non-compliance with rules
applicable to royalty-free assignments - and held that they could not
be invoked by broadcasters.


Several subsidiaries of TF1 took action against YouTube in their
capacity as producers or co-producers and broadcasters of their own
programmes or of those shown under licence. Their action was based
primarily on infringement of copyright and other related rights, and
secondarily on trademark infringement, parasitism and unfair
competition. The suit was rejected due to their failure to prove the
rights claimed. In dismissing fault on the part of YouTube, the court
confirmed the limitations on liability of a Web 2.0 site for content
that is not made available online on its own initiative. However, the
court called into question the clause on the assignment of rights by
web users that was included in YouTube's general terms of use.

The court dismissed TF1's claims of copyright infringement, stating
that the works for which infringement was alleged could not be
established from screenshots taken from official reports. The court
stated that in order to enable it to rule in this regard, the
complainants had to:

    list precisely the programmes or content for which they claimed to
hold rights;
    specify programme by programme when each was broadcast and match
up the programme content with the screenshots; and
    specify the legal basis applicable to each company within the
group and each type of content.

Accordingly, the court examined the alleged capacity and admissibility
of legal action for each entity. A claimant would see its claims
dismissed in the following circumstances:

    It presented itself as the producer or rights holder of content,
but could not provide proof of exclusivity in this capacity (ie, if it
had only been granted rights of use, as is the case for certain
programmes viewed on-demand) and therefore did not possess the power
to act in place of the rights holder;
    It presented itself as a co-producer, but failed to notify its
jointly acting co-party of the writ and notably failed to prove that
exclusivity had been granted; and
    With regard to the entity responsible for the web exploitation, it
lacked the necessary documents regarding its creation date, the nature
of the programmes concerned and determination of those for which it
claimed rights.

The channels within the TF1 group – TF1 and news channel LCI – clashed
over the terms laid down for the protection of broadcasters with
regard to proof of first broadcast. The court reiterated the doctrinal
definition of an 'audiovisual programme' in the absence of any legal
text. A 'programme' is defined as "a broadcast or series of
broadcasts, made up of signs, sounds, images or data of any kind not
having the nature of private correspondence". It deduced that only the
investment is protected, not the work, with the condition of
originality not being required. To benefit from the broadcasters'
authorisation regime, a work must have been broadcast at least once
before. The court found that it was not in a position to determine
which programmes had been broadcasted at which time. LCI produced
documents and data from official reports which were contradicted by
other documents, and thus failed to provide sufficient evidence.
However, claims by TF1 alleging, in particular, its rights concerning
sporting events were declared admissible, as it produced a list of
events alongside retransmission dates and proof of their repeat on

Moreover, the claims for copyright infringement for certain programmes
were rejected due to a failure to demonstrate the eligibility of the
programmes for copyright protection. With regard to rights of use
claimed to have been granted exclusively, the court again found the
channel's claims to be inadmissible due to a failure to demonstrate:

    the exclusive nature of the rights;
    the acquisition of the right of use in video-on-demand, due to
limitations linked to the terms of the assignments; and
    the provision of contracts related to retransmission of the sporting events.


This decision, handed down after four years of proceedings, is likely
to be appealed.

Manon Anne Ress
Knowledge Ecology International
1621 Connecticut Ave, NW, Suite 500
Washington, DC 20009 USA
manon.ress at keionline.org

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