Odile BLUM, Vice-President
Isabelle VENDRYES, Judge
Nathalie AYROY, Judge
assisted by Annie VENARD-COMBES, First Registrar,
At the hearing of November 26, 2001 held publicly before Odile BLUM, judge rapporteur, who, without opposition from the lawyers, held the hearing alone, and, after hearing the parties, reported it to the Court, in accordance with the provisions of article 786 of the New Code of Civil Procedure.
Delivered in open court
by Contradictory decision
in first instance
The Société des Producteurs de Phonogrammes en France, known as the SPPF, is a civil society for the collection and distribution of the rights of producers of phonograms and videograms established in application of Articles L 321-1 et seq. Of the Intellectual Property Code.
The NRJ company and the CHERIE FM company, a subsidiary of the NRJ group, are broadcasting companies of mainly musical programs benefiting on the FM frequency from a large audience in France.
During 1997 and 1999, the radio stations NRJ and then CHERIE FM undertook to extend their activities on the Internet by creating two sites: nrj.fr and cheriefm.fr, each offering Internet users as part of some of their respective sections, listening to musical extracts.
By registered letter with acknowledgment of receipt dated September 24, 1999, the SPPF informed the company NRJ that, in accordance with the provisions of the Intellectual Property Code, the making available to the public of extracts of phonograms required the prior authorization of the producers.
It offered to regularize its situation with regard to the producers it represents and whose phonograms are used, by concluding a general contract of experimental common interest setting the general conditions of distribution and operating remuneration. extracts from phonograms belonging to her social repertoire and invited her to finalize an agreement on the basis of a standard contract which she attached to her letter and which is entitled ”
By letter of October 18, 1999, the company .NRJ refused the proposal of the SPPF by arguing that the distribution of musical extracts on its site falls within the field of the short quotation of musical works, that the extracts that it diffuses are integrated to a digital work of information, that all the available information useful for the identification of the authors and the sources are duly mentioned and that in addition, the incriminated diffusions. constitute an undeniable publicity for the labels and their artists of which they promote the sale of the discs in the trade.
By letter of November 23, 1999, the SPPF contested the application in the present case of the short quotation exception of Article L 211-3 of the Intellectual Property Code insofar as, according to it :, the extracts of phonograms appearing on the site are made available to the public end to end, without critical or informative comments and that it is a simple compilation of extracts of phonograms offered for listening to Internet users who choose to connect on the site. It gave NRJ formal notice to cease all dissemination of extracts of phonograms belonging to its social repertoire both on the NRJ website and on the CHERIE FM site by sending it the list of producers concerned who had given it an express mandate. Management.
Then on January 10, 2000, she had a bailiff draw up a statement of the prosecution of the alleged acts.
Noting the reproduction and making available to the public, on the nrj.fr site of the NRJ company, without the authorization of the producers concerned, extracts from the phonograms of producers who are members of the SPPF who have given it a mandate management, in particular of the titles “Can’t get enough” produced by HAPPY MUSIC and “Day by day” declared by DO IT MUSIC, and invoking articles L 211-3, L 213-1, L 214-1, L 321 -1, L 321-10 of the Intellectual Property Code and L 411-1, L 411-11 of the Labor Code, the SPPF and the trade union Union of Independent French Phonographic Producers known as UPFI, have brought proceedings against the company NRJ, by deed of May 31, 2000, for the purposes of judicial notice of the violation by the company NRJ of the provisions of thearticle L 213-1 of the Intellectual Property Code.
They request, in addition to the immediate cessation under penalty of any reproduction and communication of phonograms, the communication under penalty of all elements and information allowing to determine all the phonograms of the social repertoire of the SPPF which have been offered for listening on the website. site of the NRJ company since the start of its operation and publication measures including on the website in question, the condemnation of the NRJ company to pay:
– to the SPPF, the sum of 100,000 F or 15,244.90 euros for provisional in compensation for his collective damage suffered as a result of the unauthorized exploitation of recordings in his social repertoire;
– at the UPFI, the sum of 1 F or 0.15 euros in compensation for the collective damage suffered by independent phonogram producers.
They request the provisional execution on the whole and respectively, the sums of 30,000 F or 4,573.41 euros and 20,000 F or 3,048.98 euros in application of article 700 of the new Code of Civil Procedure.
By deed of the same day, the SPPF and the UPFI, reporting on the reproduction and making available to the public, on the cheriefm.fr site of the company CHERIE FM, without the authorization of the producers concerned, of the extracts. phonograms from producers who are members of the SPPF who have given it a management mandate, in particular for titles. “The rest of the time” and “almost nothing” produced by CHANDELLE PRODUCTIONS, assigned the company CHERIE FM, relative to the site cheriefm.fr, for exactly the same purposes as the company NRJ.
The two instances were joined on October 2, 2000.
Under the terms of their latest submissions of February 26, 2001, the SPPF and the UPFI conclude that the exceptions, objections of inadmissibility and adverse pleas are rejected. They maintain the
Under the terms of their last writings of April 23, 200 I, the company NRJ and the company CHERIE FM raise the nullity of the documents initiating proceedings by application, with regard to the SPPF, of the rule “no one pleads by prosecutor” and put up against the plaintiffs a plea of inadmissibility based on the one hand, with regard to the SPPF, from the lack of justification for the special mandates of its producer members, it being specified that, according to them, all of the SPPF’s requests relates to the exercise of the individual rights of its members, a right that it intends to exercise here collectively in the name and on behalf of its members and that a simple reading of its statutes reveals that it does not have unlike the ‘UPFI, by no means the defense of the collective interest of the profession, ofon the other hand, with regard to the UPFI, of its lack of interest in acting for lack of justification for calling into question a collective interest.
Basically, they conclude that the requests are unfounded on the ground, on the one hand, that the use of the extracts at issue falls within the short quotation exception, on the other hand and in the alternative that the prohibition requested is in conflict with the prohibition. of the settlement decisions established by article 5 of the Civil Code, that the request for the communication of documents cannot compensate for the plaintiffs’ deficiencies in terms of proof and that the compensation claims are disproportionate to the possible damage arising from the dissemination by extracts from the four phonograms cited in the opposing writings.
They also ask the court to find that the SPPF has tried to impose on them through the conclusion of alleged contracts of general interest which they irrevocably renounce with the exception of short quotation, a right which is legally recognized by the Article L 211-3 of the Code of “Intellectual Property and that its claims, causes of the present dispute, are manifestly abusive.
They seek an order from the SPPF to pay them 50,000 F or
7,622.45 euros to each in application of the ‘Article 700 of the new Code of Civil Procedure
On the exception of nullity of summons and the ends of inadmissibility
Whereas the SPPF and the UPFI are acting, in addition to ordering the immediate cessation and under penalty of any reproduction and communication of extracts of phonograms without the authorization of the producers of the said phonograms, to see compensation for the “collective damage” suffered on the one hand, “due to the unauthorized use of recordings in its social repertoire” with regard to the SPPF, on the other hand, “by independent phonogram producers” with regard to the UPFI;
That the damage individually suffered by the producers of phonograms and the particular interest of each of them is therefore not in question even though the plaintiffs rely on them to prove that they are responsible for the infringement to the collective interest of which they complain on a bailiff’s report showing that phonograms produced by the companies HAPPY MUSIC, DO IT MUSIC and CHANDELLE PRODUCTIONS, associated in the SPPF have been offered for listening in extracts on the nrj sites .fr and cheriefm.fr;
Whereas the plea of nullity of the summons based on the application of the rule “No one pleads by prosecutor” and the absence of justification of the mandates of the SPPF to act in the name and on behalf of all its phonographic producer members but in the particular interest of each of them is in fact lacking and can only be rejected;
Given that this being said that article L 321-1 of the Intellectual Property Code provides in particular that the societies for the collection and distribution of rights … producers of phonograms and videograms are constituted in the form of civil societies … These regularly constituted civil societies are entitled to take legal action for the defense of the rights for which they are statutorily responsible “;
Whereas the SPPF is a civil society formed between French and foreign phonographic producers in application of articles L 321-1 et seq. Of the Intellectual Property Code for the collection and distribution of their rights as established by the provisions of the said Code;
That under the terms of article 3 of its statutes, its object, in addition to the collective exercise of the economic rights of the producers of phonograms or videograms, the conclusion of general contracts of common interest with the users of the phonograms and from videograms as well as the collection and distribution of remuneration resulting from the exercise of these rights, in particular:
“10 / The protection of the rights recognized to the producers of phonograms and videograms, in particular by. The control of the use of these phonograms and videograms and – by the observation of the infringements brought to the said rights by sworn agents, approved by the Minister in charge of Culture.
11 / Legal action, in demand or in defense, by any judicial or extrajudicial means, to have the rights that it exercises in its own name or in the name of its associates recognized and to put an end to and sanction any infringement of said rights.
12 / In general, the defense of the material and moral interests of its partners or their successors in particular, in view of and within the limits of the corporate purpose, as well as the determination of professional moral rules in relation to the activity of its associates “;
Whereas these provisions of the statute do not confer therefore not SPPF quality to take legal action in the collective interest of the profession of music producers but in the interest of its members;
Qu ‘ it is consequently without quality to act within the framework of the present proceedings and will be declared inadmissible in its requests;
Whereas under article L 411-11 of the Labor Code, professional unions may, before all courts, exercise all the rights reserved to the civil party in relation to facts directly or indirectly prejudicial to the interest collective of the profession they represent;
That it is in principle that unions have the capacity and interest to act when the dispute raises a question of principle the solution of which, liable to have consequences for all of their members, is likely to cause prejudice even indirect, even if it is of a moral nature, to the collective interest of the profession;
Whereas the UPFI is a professional union of which the phonographic producers companies DO IT MUSIC and CHANDELLE PRODUCTIONS are members, and which, under the terms of article 2-1 of its statutes, has for object:
“- to group and represent all persons physical or legal exercising the profession of producers, publishers of phonograms and videograms, and all those whose activities are related to the production of these phonograms and videograms;
-to organize, study and protect their professional interests
.. economic and moral, national and international;
-and in general, to do everything possible to ensure the promotion of production activities, and in particular of its Members, in France and abroad “; .
Whereas the defendants who do not contest the UPFI’s capacity to act in compensation for collective damage suffered by the profession it represents, avail themselves of at least consent. tacit record of the phonographic producers with the disputed uses then of the absence of setting. in question of a question of principle to conclude that the UPFI lack of interest in bringing proceedings and that its requests are inadmissible;
Whereas the UPFI intends to see the illegal nature of the exploitation by the defendants of the phonograms which they make available to the public by extracts on their respective websites;
Qu, it is not seriously disputable that the question asked is a question of principle which presents an essential interest for the whole of the profession of phonographic producers insofar as the defendants claim for their part that the exploitation by extracts qu ‘they make phonograms on the Internet under the aforementioned headings generally falls under the short quotation exception;
That the UPFI therefore has an interest in bringing compensation for the collective damage it invokes;
Whereas the absence of legal proceedings on the part of the various producers individually concerned, put forward by the defendants, has no impact on the admissibility of the applicant union to act in defense of the
That the tacit authorization implicitly invoked in defense depends on the assessment of the merits of the request, not of its admissibility;
That the UPFI will be declared admissible in its requests.
On the alleged violations and the short quotation exception
Whereas under article L 213-1 paragraph 2 of the Intellectual Property Code, the authorization of the producer of phonograms is required before any reproduction, made available of the public through the sale, exchange or rental, or communication to the public of its phonogram other than those mentioned in article L 214-1:
Whereas it is argued in request that the defendants violated these provisions by reproducing and communicating to the public on their respective websites, under the headings Music for the company CHERIE FM and Extravadance for the company NRJ, extracts of phonograms without the authorization of the producers of the said phonograms;
Whereas, contrary to what the defendants maintain, the complaints are sufficiently articulated and based on a report of a bailiff’s report drawn up on January 10, 2000, expressly aim at the communication to the public without the authorization of the producers concerned of extracts from various recordings of songs and among these the recordings of the following songs: “Can’t get enough” by Soulsearcher produced by HAPPY MUSIC and “Day by day” by artist Regina produced by DO IT MUSIC on the nrj.fr site as well as “Le rest du temps” and “Presque rien” by Francis Cabrel produced by CHANDELLE PRODUCTIONS
Whereas if the report of January 10, 2000 does not indeed allow to establish that the instrumentality bailiff proceeded to listen to the said recordings on the sites nrj.fr and cheriefm.fr, it remains that it reveals:
-that the cheriefm.fr site offers a Music section comprising, under the general mention “Find here our play list – you can listen to an extract with the Real Audio player by clicking on (here an icon in the form of a loudspeaker)”, a list of names of performers, each associated with a phonogram title with its references, sometimes including the representation of the cover of its medium, followed by the icon in the form of a loudspeaker;
-that the nrj.fr site offers an Extravadance section comprising, under the general mention ”
-For that it’s simple, just click on (here an icon in speaker) in front of the selected title “, a list of names of performers each associated with a phonogram title with its references, followed by the icon in the form of a loudspeaker;
-that among these lists of titles appear, in the Extravagance page of the nrj.fr site the title “Can’t get enough” and in the Music page of the cheriefm.fr site the titles “The rest of the time” and “Presque rien”;
Whereas the defendants also expressly acknowledge in their writings (see page 3) that they offer from their site the listening of short musical extracts, “ephemeral representations of a duration generally not exceeding about 30 seconds “;
Whereas the materiality of the communication to the public by the defendants of phonograms produced by various producers is thus established; that moreover, the UPFI rightly indicates that the making available to the public of these extracts of phonograms necessarily implies their prior digitization which is an act of reproduction;
Whereas the defendants do not provide any proof, for which they are responsible, of the authorization of the producers concerned for the reproduction and communication to the public of their phonograms on the Internet sites;
Let them conclude, however, that the exploitation they make of the phonograms is lawful by invoking the exception of short quotation from 1 ‘.
That they argue that their respective sites, the commercial purpose of which does not affect the application of the exception which they claim, are original multimedia works in which the disputed sections are integrated to form a whole offering Internet users various information on the world of music, on artists as well as on significant cultural events; that listening to extracts from phonograms constitutes a simple quotation justified by the informational nature of the quoting work; that the proposed extracts are brief in view of the work cited and the destination of the citation; that a too brief quotation is liable to distort the musical work; that it is in the light of this requirement that the disputed extracts are an average duration of 30 seconds which allows the style and inspiration of an author to be revealed without, however, exempting the listener from referring to the work and to the entire recording; that the disputed extracts, cited by the writings in demand, fall well within the exception of short quotation;
Whereas this being stated that under article L 211-3 of the Intellectual Property Code, the beneficiaries of rights related to copyright may not in particular prohibit:
“3 ° Subject to sufficient identification elements from the source:
– analyzes and short quotes justified by the critical, controversial, educational, scientific or informational nature of the work in which they are incorporated “;
That this exception to rights related to copyright, in particular the rights of phonographic producers, is to be interpreted strictly;
Whereas if it is wrongly maintained that the musical extracts are not integrated into a quoting work, of which it will be noted that the originality does not matter, it remains that within the framework of the Music and Extravadance sections considered, the extracts proposed to listening is in no way justified, as the defendants claim, by the informational nature of the said Internet sections in which they are integrated; that the extracts do not really serve to clarify any point but constitute the point itself, the heart of the section, that the preliminary text which does not present any truly informative character only presents and announces as such in the manner a phonogram launch on the air;
Whereas in any event, notwithstanding the opinion on this point of the Legal and Technical Information Service, a government body whose defendants are submitting the extract from the Internet site to the proceedings, the length of the extracts of songs broadcast by the defendants of the order of 30 seconds oppose, in view of the brevity of the works cited lasting around 3 minutes each, to these extracts being considered as short quotations;
Whereas article L 211-3 3 ° of the Intellectual Property Code is irrelevant in this case;
That the violation by the defendants of the provisions of Article L 213-1 of the Intellectual Property Code will be noted;
Whereas it will be noted at this stage that the defendants if they argue about the abuse of rights committed by the SPPF to their prejudice, do not make any claim for compensation on this count;
That in any event, the defendants do not prove that the SPPF has incurred its civil liability towards them; that they justify neither the fault committed by the SPPF in the attempt of negotiation of the general contracts of common interest nor the prejudice which would have resulted for them; that it is moreover established that they violated the provisions of article L 213-1 of the Code of intellectual property in the above-mentioned circumstances.
On remedial measures
Whereas the damage suffered by the UPFI as a result of the violations noted and the damage to the collective interest of the independent phonogram producers that it represents will be compensated by the symbolic damages that it claims, namely the sum of 0.15 euros as well as, by way of additional damages, by the publication which will be authorized under the terms of the device and the limits of the request;
Whereas it will not be granted to the measure of prohibition requested by the UPFI, which does not respond to adverse means, given the indeterminate nature of this request because of its extreme generality;
It is also important to remember that the SPPF’s requests, including that for the communication of documents, are inadmissible.
Whereas the request for provisional execution is not justified by the nature of the case and the decision taken; that it will be rejected.
On the costs and article 700 of the NCPC
Whereas the company NRJ and the company CHERIE FM, unsuccessful at the request of the UPFI, will be ordered to pay the costs and will see their request under article 700 of the new Code of Procedure civil dismissed;
That equity leads on the other hand to condemn them each to pay in this capacity to the UPFI the sum of 2,000 euros and to reject the request of the SPPF.
FOR THESE REASONS
The court, ruling publicly, contradictorily and in first instance,
Rejects the exception of nullity of the summons;
Declares the SPPF inadmissible in its claims for lack of standing;
Declares the UPFI admissible to act in defense of the collective interest;
Holds that by reproducing and communicating to the public extracts of phonograms under the headings Extravadance on the one hand, Music on the other hand, from their respective websites nrj.fr and cheriefm.fr, without the permission of the producers of phonograms concerned, the company NRJ and the company CHERIE FM violated the provisions of article L 213-1 of the French Intellectual Property Code;
Orders the company NRJ on the one hand, and the company CHERIE FM on the other hand, to each pay the UPFI the sum of 0,
Authorizes the UPFI to have the operative part of this judgment published in extracts or in full, in three newspapers or magazines of its choice, at the expense of the company NRJ, the cost of these insertions not exceeding at its expense, the amount excluding tax of 7,622.45 euros;
Orders the company NRJ to insert the provisions of this judgment on the home page of its nrj.fr site for one month after the period of 8 days from the service of this judgment and this under penalty of 152 euros by day late for two months after which it will be again done right;
Said there to be provisional execution;
Reject any other request;
Orders the company NRJ and the company CHERIE FM jointly by half to pay the costs and to each pay the UPFI the sum of 2,000 euros in application of article 700 of the new Code of Civil Procedure.
Done in Paris on May 15, 2002