COPYRIGHT – Prescription of action for infringement despite the ongoing marketing of the creation still in progress on the date of the writ of summons

CA Paris, May 17 2023, 21/15795. The Paris Court of Appeal handed down a decision in which it ruled that the prescription for an infringement action expires after five years, regardless of whether acts of marketing and distribution of the disputed work continue beyond that period.

The musical work “A World Without Danger” was created by two songwriters as the theme tune for the cartoon “Code Lyoko”. The latter felt that an album produced in 2010 by two performers from the group “The Black Eyed Peas” used the melody from their work in their track “Whenever“.

In December 2011, the latter gave the performers formal notice to pay compensation for the damage suffered as a result of counterfeiting. However, it was only on June 6, 2018 that the songwriters finally took legal actions against the performers and the companies distributing and producing the album for copyright infringement.

The first-instance judgment dismissed the defendants’ plea of prescription, but declared the plaintiffs inadmissible for failing to justify the originality of the work claimed.

The songwriters have appealed the decision.

On the question of prescription, the appellants considered that the copyright infringement action is of a penal nature “which provides for the possibility of a continuous infringement, of a successive offence” and that the purchase of an album “The Beginning” at FNAC stores

on April 27, 2018, a few days before the summons, demonstrated that the disputed work was indeed been distributed to the public, which was likely to interrupt prescription.

The respondents, for their part, considered that the claim had been time-barred since December 2016 at the latest, since the appellants had necessarily been aware of the marketing of the title “Whenever” since 2010, which was established by the sending of a formal notice dated December 30, 2011, and that actions subsequent to that date such as making the track available on the iTunes platform on March 27, 2018, or selling physical copies of the album at FNAC stores on April 27, 2018, were not separate acts of infringement, as they were simply an extension of the marketing of the track in 2010. 

The Court of Appeal finally overturned the judgment, pointing out first of all that copyright infringement action is “subject to the general prescription set out in article 2224 of the French Civil Code“. It then validated the respondents’ reasoning, ruling that on the date of the summons on June 6, 2018, the five-year statute of limitations had run, since the appellants had been aware of the disputed facts on the date of the formal notice in December 2011.

The Court then ruled that making the track available on the iTunes platform and selling physical copies of the album at FNAC stores in April 2018 were “merely the normal extension of the marketing and distribution carried out previously”, which did not trigger a new limitation period.