Private copying

Private copying is the exception that allows, without the author’s consent, copies or reproductions of a work made from a lawful source and strictly reserved for the private use of the copier, not intended for collective use. It is provided for in Article L. 122-5, 2° of the French Intellectual Property Code, which excludes from its scope copies of works of art intended for the same use as the original, copies of software other than the back-up copy, and copies of electronic databases. Its EU counterpart is Article 5(2)(b) of Directive 2001/29/EC.

Conditions of the exception

Three cumulative conditions apply. The copy must first be made from a lawful source, a requirement written into the statute in 2011 and confirmed by the Court of Justice of the European Union (« CJEU »), which holds that national legislation may not allow private copying from an unlawful source. It must then be made by the copier for his or her own use, which excludes a copy made by a third party on the user’s behalf, subject to the cloud recording services that EU case law accepts under conditions. It must finally be reserved for private use, the notion of family circle remaining narrow. The exception confers no subjective right to copy: the Court of Cassation holds that it is a defence and not an enforceable right allowing a user to demand the removal of a technological protection measure.

The private copying levy

The exception is compensated by remuneration provided for in Articles L. 311-1 et seq. IPC, payable to authors, performers and producers. It is paid by manufacturers and importers of recording media and devices, and its amount is set by a joint administrative commission according to the type of medium and the recording time or capacity, taking into account the harm actually caused. It is collected by a collective management organisation and distributed among rightholders, a fraction being allocated to cultural initiatives. Media acquired for professional purposes qualify for exemption or reimbursement, in line with the requirements laid down by the CJEU on fair compensation.

Limits in practice

Private copying covers neither file sharing between internet users, nor making available online, nor copies made within a company for the needs of its employees. Circumventing a technological protection measure in order to copy a work is not covered either, even if the copy would be private. The three-step test finally allows the court to set the exception aside where the copy would conflict with the normal exploitation of the work, as the Court of Cassation accepted for the copying of a protected videogram.

Key points

Private copying requires a lawful source, a copier acting for his or her own use and a strictly private use. It is compensated by a levy collected on recording media and is not an enforceable right. For a business, check that internal reproductions fall under a licence or the reprography scheme rather than this exception, and claim reimbursement of the levy paid on professional media.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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