What is private copying?

Frequently Asked Questions

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What is the private copy levy?

Private copying is a system which allows private individuals to copy works for their own private use, while remunerating creators. In exchange, the authors, performers and producers of these works receive remuneration to compensate the financial loss resulting from this exception. This system, first set up in Germany in 1965, now exists almost everywhere in the European Union (26 States introduced the principle of private copying, 22 States have a compensation system) and in other countries in Europe and elsewhere (Algeria, Burkina Faso, Canada, Ecuador, United States, Iceland, Japan, Norway, Paraguay, Peru, Russia, Switzerland and Turkey).

How are the sums collected for private copying used?

In France, legislation provides that 75% of the sums collected must be distributed “among rights holders (...), on the basis of the private reproductions made of each work” (cf. CPI, Article L.311-6). This distribution is the main function of Collective Management Societies entrusted with handling private copying.

25% of the sums collected are redistributed collectively in the form of aid for creation, dissemination, live performance and artists’ training. Thus, by paying the levy, the public contributes to renewing artistic creation. These sums are also distributed by Collective Management Societies and go to funding all sorts of cultural initiatives in France and abroad.

How does the private copy levy work?

The private copy levy is entirely governed by the law which establishes the main principles for collection and distribution. The principle is simple: when you buy recording media or equipment for storing copies of music, films, books, press articles or artworks, a share of the selling price goes, on the one hand, to remunerating authors, performers and producers and, on the other, to supporting cultural initiatives. How is this remuneration calculated? An independent administrative Commission defines the tariffs and the recording equipment and media subject to this levy. Once these tariffs have been set, the amount of the levy is calculated for each medium according to recording time or storage capacity. The Private Copy Commission is headed by a senior civil servant and is made up on the basis of equal representation of beneficiaries of the remuneration, representing authors, performers and producers on the one hand, and those required to pay, representing consumers and equipment manufacturers and importers, on the other hand. French law entrusts collection of the levy from equipment manufacturers and importers to a Collective Management Society, COPIE FRANCE. Since 2007, the minutes of the meetings of the Commission in charge of setting tariffs are published on the site of the Private Copy Commission.

Why pay for music or films when you download, copy or digitize them?

The principle is exactly the same as when you buy a CD or DVD in a shop or from a legal download platform: first, you pay for the music (film, photograph, documentary...) by buying a CD, DVD or dematerialized file. Then, other devices enable you to copy all or part of the record or file on media as different as blank CDs, USB flash drives, digital players, external hard drives, etc.

It is to compensate the loss due to making these copies that the private copy levy was instituted. It serves to remunerate authors, performers and producers in exchange for the freedom granted you to copy their works.

It must be understood that there are two distinct acts: the initial purchase of music does not include permission to copy it. Paying the levy on the purchase of blank media is what entitles you to do so.

Exchanging works on file-sharing sites should not be confused with private copying. Making files available on the Internet comes under the exclusive right of authors to authorize or forbid exploitation of their works; it is illegal if it has not been authorized by the authors. Similarly, copies made from files made available in this way do not come under the exception for private copying, because their source is illegal.

How is it possible to know what has been copied in order to redistribute the revenue from the private copy levy?

Anyone can copy works broadcast on radio or television, or recorded on CDs and DVDs purchased in shops.

Identifying what has been copied is structured in two steps:

1/ Data based on these recording sources inform us of what can be copied:

For music, Collective Management Societies receive broadcast reports from radio and television stations to identify the works broadcast and obtain information on record sales and the works reproduced. For audiovisual works, Collective Management Societies use detailed broadcast reports of audiovisual works provided by the channels.

2/ Surveys of copying practices inform us on what is being copied:

Individual private copying practices are regularly observed by polling organizations. This is the case with SOFRES for audio private copying. Copies made from radio broadcasts and those made from commercial recordings are determined on the basis of the results of these surveys. They also inform us of the musical genres being copied, grouped in four categories: variety, classical, jazz and other. For private copying of audiovisual works, individual private copying practices are known through surveys of the copying of each programme by Médiamétrie (Mediamat panel). On the basis of such information, each Collective Management Society applies the distribution rules established according to their categories of rights holders. To identify private copying practices for books and the visual arts, Médiamétrie undertakes a survey of web users every year.

Is it the consumer who pays the private copy levy when buying recording equipment or media?

After paying the levy at source, importers or manufacturers, or their distributors pass on this sum in the final price to consumers. As part of the cost price for such media, it may be taken in part or in whole from the manufacturers’ or distributors’ margin.

How can I know the amount of the levy paid by consumers according to the type of equipment or media?

The tariffs for the levy are published in the Journal Officiel, each decision being voted by the Private Copy Commission. The COPIE FRANCE site publishes these tariffs in a single document. The Law of 20 December 2011 on private copying now requires that buyers be informed of the amount of the levy when recording media are put up for sale. The enforcement conditions for this obligation are defined in a decree of 10 December 2013. Buyers are also informed of the existence of an explanatory sheet relative to this remuneration and its purposes (available at www.culturecommunication.gouv.fr), which can be integrated in the equipment in dematerialized form. The content of this explanatory sheet is specified by ministerial decree of 24 January 2014. The system became applicable on 1 April 2014.

Do I have to pay the private copy levy when I buy blank media from Internet sites based outside France?

French law provides for the private copy levy to be paid by “manufacturers” and “importers” and “intra-Community buyers” of equipment in France. Until recently, the Court of Cassation and, before that, the Court of Appeals of Paris, had confirmed that, for online purchases made from foreign sites, French consumers, as importers, were solely responsible for paying the private copy levy. This situation was radically altered by the decision of 16 June 2011 by the Court of Justice of the European Union in the Opus Supplies case. In this case, the CJEU decided that, for the sale of recording media subject to the private copy levy in the consumer’s state of residence by a cyber-merchant based abroad, domestic law must be interpreted in the sense that it is the cyber merchant who must pay the levy. The High Court gave all the more force to this principle that it reminded member States of their obligation to achieve a certain result (obligation de résultat) to ensure rights holders of necessary financial compensation for any exception or limitation of the reproduction right, independently of the seller’s location. As a result of this decision, the commercial activity of a site which proposes media subject to the private copy levy for sale online from a member State other than France to final users in French territory makes the site liable to COPIE FRANCE for this levy, according to the provisions in Article L 311-4 of the Code de la Propriété Intellectuelle as interpreted in the light of Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright/authors’ rights and neighbouring rights in the Information Society, by the CJEU in its Opus Supplies decision of 16 June 2011.

As a professional, can I claim exemption from payment of the levy?

This is possible, in certain conditions defined by the Code de la Propriété Intellectuelle. In other words, you must be sure that the media purchased are exclusively for professional use and will never serve for private copying. Thus, payment of the private copy levy is not linked to the nature of the person acquiring the equipment or media (private individual or professional) but to the use made of this equipment.

 

Is the private copy levy fair?

If there were no works, there would be no need for media for copying them! This justifies remuneration of authors, performers and producers whose works are copied and for this remuneration, which is a very small amount, to be paid by the manufacturers and/or importers of media. This remuneration is all the more justified that the sale of recording media enables importers to reap substantial profits.

Regarding the distribution of the sums collected for private copying, it is done in a fair accurate way by collective societies on the basis of reliable objective data.

Is the private copy levy on blank CDs outdated?

Why should it be? Consumers retain the possibility to make copies for their own private use, even in a digital world. And there is no lack of sources for private copying, whether from radio broadcasts, the Internet or audiovisual programmes on television.

Do technical protection measures (TPM) prevent private copying?

The private copying exception is not a licence to make copies indefinitely without compensation. The system was devised as an exception to the reproduction right, to enable private individuals to copy their favourite works in exchange for payment of a levy.

True, Technical Protection Measures (TPMs) were integrated in certain marketed media or by certain legal download sites to limit, or even prevent copying and respect the rules of copyright/authors’ rights and neighbouring rights and the principles of protection of personal data. In practice, however, such technical measures do not prevent private copying in general: commercially available CDs do not have technical protection measures and it is possible to copy musical files downloaded from iTunes and other legal online music services on different media.

We should add that television programmes may not be covered by technical protection measures which could result in depriving the public of benefiting from the exception for private copying.

Finally, a decision of the Court of Justice of the European Union of 27 June 2013 specifies that the application of technical protection measures must preserve the exception for private copying and its remuneration when a member State has introduced this exception in its domestic legislation, which is the case for France, among others.

Do other European countries have a private copy levy?

Germany was a pioneer in Europe, voting a law on authors’ rights and neighbouring rights and a levy on the sale of audio and video recording equipment back in 1965. Shortly thereafter, other European countries followed suit: Austria (1980), Finland (1984), France (1985), the Netherlands (1990), Spain (1992), Denmark (1992), Italy (1992), Belgium (1994), Greece (1994), Portugal (1998) and Sweden (1999).

Of the 26 member States which authorize private copying, four (Bulgaria, Cyprus, Malta and Luxembourg) do not yet have a compensation system for rights holders and creators. Such negligence violates European law, since the CJEU (Court of Justice of the European Union) has reiterated several times the requirement for European Union member States having introduced the exception for private copying to provide remuneration to compensate creators in exchange. In the 22 countries where such compensation exists, the remuneration right is subject to mandatory collective management.

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