Online TV recording service infringes copyright

03 December 2008

Guillaume Jahan

This decision of the Paris Tribunal de Grande Instance concerned a company that provided a type of network PVR (personal video recording) service by recording user-selected television programmes and emailing them to the user. The court held that the service infringed copyright.

French start-up company Wizzgo offers an online TV recording service.  Acting as a personal video recorder, Wizzgo records and emails a digital copy of any chosen TV show on French digital terrestrial television to users, within an hour of airing. The copy is provided in a standard format that can be used on a computer, media center or any media player.  The recording has no anti-copy protection but is marked to allow it to be traced.

TV channels M6 and W9 challenged the legality of the service, arguing that Wizzgo should be prevented from recording any M6 and W9 program.  The channels argued that such recordings unfairly competed with their online catch-up TV services and infringed the copyright in the programs produced.

Because the service is free of charge and intended for the viewer’s exclusive use, Wizzgo argued that it was covered by the private use exception (copy made upon request for viewer’s private use) and intermediate and temporary copy exception (copy sent to viewer and not saved by Wizzgo) to the copyright monopoly (Article L.122-5 of the French Intellectual Property Code).

The Judge President of the Tribunal de Grande Instance of Paris ruled against Wizzgo, stating that the service should pay copyright fees to the TV programme owners.  Even though the service was free of charge to the user, it derives profit from e-advertising support, which is prohibited, “it is forbidden to create and appropriate economic wealth from a copy service of work or audiovisual program that evades due fees to copyright owners”. The President Judge considered that the Wizzgo service was “obviously illegal”. Wizzgo was ordered to stop recording M6 and W9 programs and to provide information about the number of recorded hours of M6 and W9 programs, along with figures of advertising proceeds.

This ruling is consistent with a famous French Supreme Court precedent on the printing office.  This ruled that providing a means of copying material makes the printing office a copyist and as such it should only be entitled to produce private use copies.  It could not make copies available for commercial or distribution purpose even though the copy was made for a client’s personal use (Cass. Civ. March 7, 1984 “Rannou-graphie”). This precedent has already been applied to an office offering to burn CD Roms of soundtracks and records, which was considered to be copyright infringement (TGI Valence July 2, 1999 “Laser Storage”).