Month: December 2014

The French Parliament has recently passed a new law relating to infringement of intellectual property rights. Enacted on March 11th, 2014. The effect of this law is to harmonize numerous provisions applicable to the various intellectual property rights which were previously subject to different rules. It also clarifies some of the unclear dispositions contained in the previous infringement law dated October 29th, 2007.

Noteworthy provisions include:

  • The statutes of limitations for civil infringement proceedings are harmonized to 5 years for all IP rights. The statutes of limitations were previously of either 3 or 5 years: 3 years for patents, trademarks and designs, and 5 years for authors’ rights.
  • Discovery proceedings (“saisie-contrefaçon”) are harmonized for all intellectual property rights. The new legislation erases some specificities relating to authors rights, such as the possibility that the discovery proceedings be performed by a police officer at the request of the allegedly infringed party. Now, only the President of the “Tribunal de Grande Instance” may order discovery proceedings.
  • The right to information for the infringed party is strengthened: a court having jurisdiction in the subject matter may, including by way of summary judgment, order a party to communicate information and documents relating to the allegedly infringing products before the court rules on the infringement itself;
  • The method of calculation of damages awarded to the rights holder has been clarified. Courts will have to separately take into account the negative consequences of the infringement on the infringed party, which may include not only economic and actual losses but also other damages such as moral damages which may have been suffered because of the infringement) as well as profits made by the infringer. Courts may also, at the infringed party’s request, grant him or her a lump sum of money, which must be greater than the amount of royalties the infringer would have had to pay had he requested authorization from the rights holder to exploit the intellectual property rights.

This law also permits French customs to act more efficiently by improving, amongst other things, the procedures for detention under customs control.

While we obviously have to wait and see how courts will implement this new legislation, it would appear that such changes are beneficial for professionals and rights holders given that it simplifies a plaintiff’s legal recourse against infringing third parties.


On February 28th, 2014, the 28 EU Member States enacted a directive regarding the collective management of copyrights and neighboring rights.

This directive harmonizes, at the European level, the rules regulating the functioning of collective management societies, and in particular the rights holders’ membership to such societies (rights holders are entitled to limit the types of works, the rights as well as the territories covered by the collective management scheme, and may elect the collective management of their choosing notwithstanding their nationalities or place of residence), the governance and transparency of such societies towards their members (obligation to communicate information), and the payment of royalties by such societies to their members (regular payments at the earliest opportunity in no event later than nine months following the end of the fiscal year).

This new legislation is also aimed at facilitating the grant of multi-territorial licenses for online use of musical works within the European Union. Each online music platform (such as Deezer or Spotify) will therefore be able to obtain a pan-European license to use a work from a single collective management society instead of having to deal with a different collective management society for each Member State.

The Member States are required to implement this directive in their national systems before April 10th, 2016. In the meantime, collective management societies in each Member States should enter into competition with respect to rights holders’ memberships and the grant of pan-European licenses.


A photographer employed by a photography studio may not claim author’s rights for photographs he took while so employed.

The French Court of Appeals of Paris held, on January 15th, 2014, that the photographs taken by said photographer pursuant to the instructions of his employer, and in collaboration with his colleagues, must be treated as collective works i.e. that such photographs were created and completed by various individuals pursuant to the specific instructions of the Studio and thus the Studio Harcourt was the exclusive owner of such photographs, including all author’s rights therein.

This decision is rather surprising given that the photographer had previously entered into an agreement with the Studio Harcourt pursuant to which he transferred his authors’ rights. The parties’ determination to enter into such an agreement could be considered as a mutual acknowledgement by the parties’ that such photographs were indeed not collective works.

Given that the Court determined that the photographs were collective works, the photographer had no legal right to any contingent compensation from the exploitation of such photos nor was he entitled to be credited as the author thereof, unless otherwise agreed to by the parties.

In its decision, the Court noted that the photographer’s contribution blended with the contribution of the studio’s other employees, such as those in charge of lighting, makeup, and photo-retouching, who all work to convey the “Harcourt style”, “especially coded” and representative of the photographs taken and exploited by the Studio Harcourt.

This decision is in line with recent French case law, which tends to qualify as collective works those works which are created by employees within the scope of their duties and pursuant to their employer’s instructions.


The new consumer legislation (entitled “Loi Hamon”) passed on March 17th, 2014 strengthens e-traders’ obligations towards consumers. Notably, this legislation implements in France certain consumer protection provisions enacted at the European level.

Noteworthy provisions include:

  • An obligation to provide additional information to the consumer prior to contract, such as information on the product, the e-trader, the means of payment, and the obligation to expressly mention that the order is subject to payment (while this last obligation may seem superfluous to a French consumer, it stems from a willingness to harmonize the rules applicable in each EU Member States; German consumers, for example, are accustomed to paying for an order at the time of delivery);
  • Obligation for the e-traders to specify the delivery date or delivery estimate (if silent, the e-traders will have to deliver within 30 days);
  • Extension of the withdrawal period (from 7 days to 14 days);
  • Reimbursement to the consumer to occur within 14 days (instead of 30 days) (notably in situations where the consumer exercises his right of withdrawal); and
  • Prohibition on the e-traders to add goods or services to the consumer’s order by pre-ticking boxes relating to such goods or services.

Further, the e-traders are now prohibited from telephone soliciting any consumer who has indicated that he or she does not want to be solicited, and from using unlisted and blocked telephone numbers in contacting consumers.

All of these provisions came into force on June 14th, 2014. Each e-trader must therefore ensure that the content of its websites as well as its sales contracts and general terms and conditions comply with these terms.


The drama series “Intime Conviction”, aired on television channel Arte and on Arte’s website, has been banned from broadcast in France. On February 27th, 2014, a French Court (the Tribunal de Grande Instance of Paris) ordered the broadcaster and Maha Productions (the producer) to refrain from further broadcasting the program after Dr. Jean-Louis Muller took legal action and requested summary judgment claiming that the program invaded on his right to privacy. The Court of Appeals of Paris confirmed the lower court’s ruling on February 28, 2014.

Dr. Muller, a forensic pathologist charged with his wife’s murder in 2001, inspired the series’ screenplay. Dr Muller was acquitted on October 31st 2013 by the highest French Criminal Court (Cour d’Assises of Meurthe et Moselle), and the decision is not subject to appeal.

The first part of the series was formatted as a television movie and broadcast on Arte on February 14th, 2014. The story revolved around a police investigation following the fatal shooting of a woman by her husband, a forensic pathologist, and his arrest for her murder. The second part of the series was scheduled to be broadcast on the Internet between February 14th and March 2nd, 2014 under the format of 35 short programs, retracing the proceedings before the Criminal Court. The trial was to be interactive and Internet users were throughout the proceedings invited to give their opinion on the guilt or innocence of the accused. The trial was to end with the broadcast of the verdict reached by Internet users.

However, the Court of Appeals of Paris prohibited the broadcast. The Court ruled that while certain facts relating to Dr Muller’s personal life may have been disclosed during his trial, those facts could not lawfully be used in a dramatized program (as opposed to a documentary or a news article) and that the facts were intermingled with fictionalized facts encroaching on Dr Muller’s personal life, without the program clearly distinguishing between reality and fiction.

In light of such decision, producers wishing to produce a drama program inspired by actual legal proceedings must therefore ensure that said legal proceedings, and the identities of the persons involved, are not easily recognizable by the viewers. If so, the producer must restrain from including the following in the drama program:

  • facts not disclosed during the legal proceedings to the extent they violate an individual’s right to privacy;
  • and/or fictionalized facts presented as actual facts, since it constitutes a violation of an individual’s right to privacy.