I am in New York for a week to attend the Fordham IP conference and to present at the Cardozo conference on the “International Harmonization of Copyright Limitations and Exceptions”. My paper is entitled: ”Private copying in France and the UK: a right to copy or a right to pay?” Looking forward to this IP bonanza and I hope to meet many of you there!

In October 2007, a Paris court ordered Google to pay €35,000 in damages for the copyright infringement of the documentary “ Tranquility Bay ”, multiple unauthorized copies of which had been posted on the video-sharing website Google Video. The court ruled that the hosting provider was liable for copyright infringement despite having disabled access to the copies within days after having been notified to do so by the rightholders. The court said that Google had been, from the moment of the first notification, under an obligation to implement the technical means to prevent the reappearance of the documentary. The court, observing that Google had not prevented the multiple postings of the documentary, ruled it had failed with its obligations and was therefore liable for copyright infringement. This is a controversial decision as it substantially extends the duties of hosting providers in dealing with infringing content.

Dailymotion, a French video-sharing website, recently received bad news on the judicial front. This summer, it was sentenced by a Paris court to pay €23,001 ($33,400) in damages for the copyright infringement of the movie “Joyeux Noël”, an unauthorized copy of which had been made available on the website by an internet user. The court asserted that the hosting provider, because it had enabled and thrived on mass piracy, was under a general obligation to implement technical means to prevent unlawful activities. This controversial decision is worrying as it greatly expands the duties of Dailymotion with regards to piracy. Dailymotion has appealed the decision but face more judicial woes. It has also been sued for copyright infringement by a French comedian and could face another lawsuit from a French television broadcaster. Dailymotion would find little comfort in the fact that other video-sharing websites have not fared better in France. Internet giants Google, YouTube and MySpace also face copyright lawsuits. The “Joyeux Noël” case is symptomatic of the resolve of content producers in holding websites accountable for internet piracy. It also illustrates the challenges faced by the courts in defining the obligations of websites with regards to copyright infringement. In all, Dailymotion can expect protracted legal battles with users of the media industry over copyright issues.
Yet, things might not be as grim as they appear. Every cloud has a silver lining. Looking through the prism of judicial activity gives an incomplete and distorted picture of Dailymotion’s relationship with the media industry. Dailymotion has been taking a series of measures to accommodate rightholders, both before and since the “Joyeux Noël” decision. It has been implementing filtering technology to prevent piracy and has actively been seeking partnerships with content producers. This strategy has shown promising results. Dailymotion has entered revenue-sharing deals with many media companies to broadcast their content. It has also managed to position itself as a global champion for copyright.
These proactive measures towards copyright compliance and the links built with many content producers should help Dailymotion maintain the number of future copyright lawsuits at a level that would not jeopardize its survival. Such optimistic outlook might partly explain why, despite ongoing litigations, the financial backers of Dailymotion have been willing to invest a further €25 million to help the Paris-based start-up grow and compete on the global stage.

In June, a Paris court ordered MySpace to pay almost €60,000 ($88,000) in damages to a French comedian for breach of his copyrights and personality rights. The court considered that MySpace, acting as a publisher, was liable for copyright infringement as unauthorized copies of the comedian’s work had been posted on the web page of a MySpace member.

On Friday, April 6, the French government inaugurated the regulatory body in charge of ensuring that DRMs (Digital Rights Management) are made compatible and do not prevent users of copyrighted work to benefit from copyright exceptions . If successful, this DRM watchdog, the first of its kind in the world, might become a model in dealing with problems raised by DRMs. Already its mere introduction in French law eight months ago may have played a pivotal role in Apple’s recent decision to change its DRM policy and promote DRM-free music.