Does AIRBNB break the law in France?

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The Advocate General of the European Court M. SZPUNAR  gave an opinion in the case  C‑390/18 AIRBNB Ireland v Hotelière Turenne SAS, Association pour un hébergement et un tourisme professionnel (AHTOP)Valhotel. The case concerns the following:

AIRBNB Ireland UC, a company governed by Irish law established in Dublin (Ireland), is part of the AIRBNB group and is wholly owned by AIRBNB Inc. AIRBNB Ireland administers, for all users established outside the United States, an online platform designed to connect, on the one hand, hosts (professionals and individuals) with accommodation available to rent with, on the other hand, persons seeking that type of accommodation.

Following a complaint against an unknown person, together with an application to join in the proceedings as civil party, lodged by, in particular, the Association pour un hébergement et un tourisme professionnel (AHTOP), the Prosecutor’s Office, Paris (France) on 16 March 2017 issued an initial indictment for handling of funds, for activities involving mediation and management of real property and business activities by a person not in possession of a professional licence, in accordance with the Hoguet law, and for other offences, alleged to have been committed between 11 April 2012 and 24 January 2017, and changed the status of AIRBNB Ireland to a ‘témoin assisté’ (a person who is not merely a witness, but to some extent a suspect).

AIRBNB Ireland denies acting as a real estate agent and claims that the Hoguet law is inapplicable on the ground that it is incompatible with Directive 2000/31.

It was in those circumstances that the investigating judge of the Tribunal de grande instance de Paris (Regional Court, Paris) (France), by decision of 6 June 2018, received at the Court on 13 June 2018, decided to stay proceedings and to refer the following questions to the Court:

‘(1) Do the services provided in France by the company AIRBNB Ireland via an electronic platform managed from Ireland benefit from the freedom to provide services provided for in Article 3 of [Directive 2000/31]?

(2) Are the restrictive rules relating to the exercise of the profession of real estate agent in France, laid down by [the Hoguet law], enforceable against the company AIRBNB Ireland?’

The Advocate’s opinion:

1) Article 2(a) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), read in conjunction with Article 1(b) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, must be interpreted as meaning that a service consisting in connecting, via an electronic platform, potential guests with hosts offering short-term accommodation, in a situation where the provider of that service does not exercise control over the essential procedures of the provision of those services, constitutes an information society service within the meaning of those provisions.

2)  Article 3(4) of Directive 2000/31 must be interpreted as meaning that a Member State other than that in whose territory a provider of an information society service is established cannot, for reasons falling within the coordinated field, restrict the free movement of those services by relying, as against a provider of information society services, on its own initiative and without an examination of the substantive conditions being necessary, on requirements such as those relating to the practice of the profession of real estate agent, laid down in Law No 70-9 of 2 January 1970 regulating the conditions of the exercise of activities relating to certain transactions concerning real property and business assets.

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Originality of photos according to a French court

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A Court in France ruled in a case regarding originality of copyright works. In the case at hand, a photographer took pictures of bathrooms and tried to sell them to a publisher. However, the negotiations failed. Nevertheless, the publisher published the photos and as a consequence, the photographer initiated a lawsuit. He lost the case because the court concluded that the aforementioned pictures are not original taking into consideration their topic. In the appeal, however, the court overruled this decision stating that originality of works of art doesn’t depend on the subject-matter but on the creative efforts put by the author in the process of their creation such as choosing photo’s lighting, framing, angle, highlighting of specific details, digital editing etc.

The publisher tried to vindicate its position claiming that he had the right to publish the photos based on the email correspondence with the photograph, but the Court dismissed this as insufficient, highlighting the need of a written and signed agreement for that purposes.

Source: JIPLP.

French heritage and its commercial use – a court decision

louvre-530058_960_720The Constitutional Court in France has ruled that the last amendments in the Heritage Code are legal and constitutional.

These amendments concern the following:

The use, for commercial purposes, of the image of buildings constituting national domains, on any media, is subject to the prior authorization of the custodian [French term is “gestionnaire”] of the relevant portion of the national domain.  Such authorization may take the form of a unilateral deed or a contract, whether or not in conjunction with financial terms.

The fee shall take into account the advantages of any kind obtained by the holder of the authorization.

The authorization contemplated by the first paragraph is not required where the image is used in the context of the exercise of a public service mission or for ends that are cultural, artistic, pedagogical, for teaching, research, informational and by way of illustration of current events.”

The case was initiated by Wikimedia France which claimed that these amendments as stated are at variance with the French Constitution in particular with the freedom to carry on business, as well as the right of property, and the principle of equality before the law.

According to the Court, however, the above-mentioned amendments are constitutional because they give options for free use of heritage images in case of education, cultural activities, informational purposes and such related to a public service mission.

For more information here.

Source: The 1709 blog.

Copyright and out-of-print books – an European court’s decision

european-union-flagThe European court ruled in case C‑301/15, REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, France), made by decision of 6 May 2015, received at the Court on 19 June 2015, in the proceedings Marc Soulier, Sara Doke v Premier ministre, Ministre de la Culture et de la Communication, intervening parties: Société française des intérêts des auteurs de l’écrit (SOFIA), Joëlle Wintrebert and Others.

The case concerns the following:

Within the meaning of the Intellectual Property Code, an ‘out-of-print book’ means a book published in France before 1 January 2001 which is no longer commercially distributed by a publisher and is not currently published in print or in digital form. Articles L. 134-1 to L. 134-9 of that code established a legal framework intended to make those books accessible once again by organising their commercial exploitation in digital form. The detailed rules for the application of those provisions were laid down by Decree No 2013-182.

By application registered on 2 May 2013, Mr Soulier and Ms Doke, who are both authors of literary works, requested the Conseil d’État (Council of State, France) to annul Decree No 2013-182.

In support of their claim, they submit, in particular, that Articles L. 134‑1 to L. 134-9 of the Intellectual Property Code establish an exception or a limitation to the exclusive reproduction right laid down in Article 2(a) of Directive 2001/29 and that that exception or limitation is not included among those listed exhaustively in Article 5 thereof.

The Syndicat des écrivains de langue française (SELF), the Autour des auteurs association and 35 natural persons subsequently intervened in the proceedings in support of the claim brought by Mr Soulier and Ms Doke.

In their respective defences, the Prime Minister and the Minister for Culture and Communication both contested that the claim should be dismissed.

SOFIA subsequently intervened in the proceedings, also seeking to have those claims dismissed. SOFIA presents itself as a society made up equally of authors and publishers, mandated to manage the right to authorise the reproduction and representation of out-of-print books in digital form, the public lending right and the remuneration for digital private copying in the field of writing.

After dismissing all the pleas of Mr Soulier and Ms Doke that rested on legal bases other than Articles 2 and 5 of Directive 2001/29, the referring court started the examination of the pleas relating to those articles by holding, immediately, that the treatment of that aspect of the case depends on the interpretation to be given of those articles.

In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Do [Articles 2 and 5] of Directive 2001/29 preclude legislation, such as that [established in Articles L. 134-1 to L. 134-9 of the Intellectual Property Code], that gives approved collecting societies the right to authorise the reproduction and the representation in digital form of “out-of-print books”, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that it lays down?’

The Court’s decision:

Article 2(a) and Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as precluding national legislation, such as that at issue in the main proceedings, that gives an approved collecting society the right to authorise the reproduction and communication to the public in digital form of ‘out-of-print’ books, namely, books published in France before 1 January 2001 which are no longer commercially distributed by a publisher and are not currently published in print or in digital form, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that that legislation lays down.