Remuneration for private copying: changes in store for French rights holders

The 1709 Blog is delighted to receive this piece of information from Paris-based intellectual property practitioner and enthusiast Asim Singh (asingh@leolex.fr) on a topic that seems to attract a lot of attention in continental Europe -- remuneration for private copying. As Asim explains:

"The French government recently (October 26, 2011) tabled a bill (projet de loi) related to the remuneration for private copying. 

Like many other European jurisdictions, France applies a levy to blank media capable of being used for private copying (cassettes, CDs, DVDs, hard drives, etc.), defined by Section L.112-5 of the Intellectual Property Code as “copies which are strictly reserved for the private use of the copier and not intended for a collective use”. 

The so-called Private Copy Commission (made up of representatives of rights-holders, consumers and consumer electronics companies) determines the media subject to the levy and sets the applicable levy rate. The monies are paid by manufacturers and importers of subject media who in turn pass on the ultimate burden to the consumer who acquires the subject media. The monies are collected by Copie France which, after deducting a portion earmarked for subsidizing creative efforts, live shows and training artists, passes the balance on to the beneficiaries (authors, performers, producers and publishers), according to a pre-determined key. 

The system has been in place since 1985 but two recent rulings by the Conseil d’Etat (French Supreme Court for administrative matters) have led the government to act to modify the statutory scheme. 

In a July 11, 2008 decision regarding applicable levy rates, the Conseil d’Etat held that the remuneration owed for private copying had to be tied directly to the scope of private copying from lawfully acquired sources. In other words, the potential for a given media to be used for private copying from unlawfully acquired sources (e.g., peer-to-peer networks) was not relevant in determining the applicable levy rate. 

In a June 17, 2011 ruling, the Conseil d’Etat applied the recent Padawan decision of the Court of Justice of the European Union (October 21, 2010) and held that media acquired for professional purposes could not be presumed to be intended for use for private copying and hence should not be subject to the levy. The bill tabled by the government takes these developments into account and proposes to amend the Intellectual Property Code accordingly. 

In addition, the bill mandates that the media acquired by a consumer and subject to the levy be accompanied by information regarding the amount of the levy applicable to it".