eMule: Decision of the Supreme Court (Cour de cassation) 27 February 2018 – Case No. ECLI:FR:CCASS:2018:CR00113

Works are protected as intellectual property on the grounds that they enjoy creativity and complexity, irrespective of quality otherwise. Any online service communicating protected works to the public without the necessary authorisations having been obtained and any making available of a software for this purpose is covered by the provisions of Art. L. 335-2-1 of the Intellectual Property Code. According to Art. L. 331-1-3 of the Intellectual Property Code, in order to determine the damages the court shall consider the negative economic consequences, including lost profits, suffered by the injured party, the nonpecuniary loss caused to the right holder as a result of the infringement, and the profits made by the author of the infringement. In any event the court can, alternatively and upon request by the injured party, allocate as compensation a lump sum exceeding the amount of fees or royalties which would have been due if the infringer had requested authorisation to use the right which it infringed. By failing to discuss the criteria required to take into account in the light of Art. L. 331-1-3, No. 1, of the Intellectual Property Code, without being requested by the injured party to award lump sum compensation as provided for in No. 2 of the same article, and, on the other hand, by not assessing the compensation for the infringement of the nonpecuniary rights enjoyed by the author of any intellectual property work as a result of the fact of its infringement, a judgment or ruling fails to state the grounds capable of justifying the decision in accordance with Art. 593 of the Code of Criminal Procedure, as the insufficiency or contradictory nature of the grounds is equivalent to their absence.