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Legal downloading platforms strike back

Since online music downloading began to spread in the early 2000s, questions regarding enforcement of copyright and neighbor rights arose in practice, especially because controlling Internet users was no easy task and that the freedom the Internet provided left the door open to breaches of law. In order to set rules for this generalized practice, legal (lucrative) online downloading websites were created, and this new consumer trend for musical works became even more popular as traditional supports like CDs started to be seen as obsolete by most users.

One of the remaining issues dealt with the authorization these platforms should in theory have sought and obtained from authors and performers to make their works publicly available. Nevertheless, this system being quite restrictive, French law on copyright had stated since 1985 that in compensation of a fair fee, producers and performers would not oppose the direct communication of a work (except for shows, which shall meet specific requirements) or its radio broadcasting. But the absence of mandatory authorization, or the implicit authorization, was subject to the payment of a fee.

While negotiating the voting of the French “loi DADVSI” (concerning copyright and neighbor rights within the information society – June 30, 2006), the SPEDIDAM, which manage neighbor rights for dancers and musicians, sued six of these online downloading websites, claiming counterfeiting. This entity considered that these latter were not allowed to distribute and sell on the Internet the musical works it managed, since the assignment of the related rights had only been made for traditional supports (CDs or DVDs), their putting online constituting a new means of use that should be subject to authorization and payment of the usual fees. A total of 3.5 million EURO was then asked for from iTunes, e-compil, Fnacmusic, OD2, Sony connect and VirginMéga, on the basis of estimates of the sums the SPEDIDAM should have received.

The aim of these lawsuits initiated by the SPEDIDAM was to defend the project of levy on non-commercial sharing of audiovisual works. A fee should have been paid (approximately 5,- EURO per month, deducted from the Internet invoice of the platform user), but after two rewritings in 2006 and 2009, it was finally rejected

On January 15, 2010, the District Court of Paris put an end to the controversies regarding the “loi DADVSI” and its enforcement in neighbor rights matters over the Internet. Basing its reasoning on the WIPO Treaty of 1996, the Rome Convention of 1961 and the French copyright law of 1985, the judge decided that « the legal definition of trade phonograms is independent from their support, and making them publicly available in sufficient quantities by means of dematerialized supports does not lead to a modification of their initial destination ». Therefore, once physical distribution is authorized, this agreement extends to distribution on lucrative downloading websites of « phonograms published for commercial purposes ». iTunes, e-compil, Fnacmusic, OD2, Sony connect et VirginMéga saw their legal providers of online music status reasserted, and can now use this decision to justify their reproduction and communication of musical works.

Although the SPEDIDAM is now deprived of substantial fees for its adherents, the ruling seems fair considering the irreversible evolution of audiovisual works’ consumer trends. Besides, in most assignment deeds relating to copyright and neighbor rights, the scope of the transfer is already understood as applying to known supports and supports not created yet at the date of signature. The District Court of Paris only remained consistent with long-lasting contractual tradition in continental countries such as France.