This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
The US Supreme Court had to determine whether Aereo performed a copyright work and whether it did so publicly. So which way might this have gone before a French court?
The US Supreme Court held that like a cable company, Aereo "transmitted a performance", i.e. communicated it with its own equipment, whereby images and sounds were received beyond the place from which they were sent. Article L.122-2 of the French Intellectual Property Code (IPC) provides that: "Performance shall consist in the communication of the work to the public by any process whatsoever […]." Under French law, if the technical means provided are not merely used to maintain or improve the quality of the reception of a pre-existing transmission, it shall be considered that there is a new and separate transmission of a copyrighted work, i.e. a new "performance".
Aereo argued that its transmissions were private performances because each of these performances is capable of being received by one and only one subscriber. The US Supreme Court held that the Copyright Act suggests that "the public" consists in a large group of people outside of a family and friends and that the public need not to be gathered together spatially or temporally. As far back as 1994, the French Cour de Cassation (6 April 1994, no.92-11186) ruled that a hotel that has provided parabolic antenna to its clients has made a performance of copyrighted works, even though TV channels were being broadcasted in separate rooms. It therefore seems likely that the reasoning of the US Supreme Court would be followed by the French Courts on this point.
Of course, French copyright law, like many others, provides several exceptions to the monopoly of the copyright holder, and an Aereo-like service might seek to rely on such an exception.
First, the private copy exception (Article L.122-5 IPC) provides that, once a copyrighted work has been disclosed for the first time, its author cannot prevent free and private performance exclusively made in a family circle. Such exception is narrowly interpreted by French courts. Put simply, Aereo's subscribers are not Aereo's family.
Second, Article L.122-5 IPC further provides that copies or reproductions made from a legal source reserved strictly for the private use of the copier and not intended for collective use are allowed. Aereo system tunes its antennas to the over-the-air broadcast such that it could be claimed that the source from which the signal is provided to users is legal. The exception, however, only applies when the copier and the user are the same person. In the Aereo system, it is Aereo which provides a copy of the program in a subscriber-specific folder.
It is also worth remembering that the French courts have previously decided against a cloud TV service which was operating without appropriate licences, namely Wizzgo. In that case, Wizzgo tried to argue that its service fell within these exceptions but the court disagreed, finding that they were exactly that - exceptions, not rights capable of being transferred.
For these reasons, we think the prospects of an Aereo-like service succeeding under the existing scope of French copyright law would be fairly bleak.
To learn more about the implications of the Aereo decision, read our Aereo and the future of cloud TV report.