The new legislation on private copying remuneration: a transitory step towards deeper reshaping of the landscape

Each and every creator has a right on his or her work which is a combo between, on the one hand, a pecuniary right, namely the right of reproduction and the right of  representation, and on the other hand a non-pecuniary right. In spite of the existence of the right of reproduction, some limits remain in order to allow the spread of culture for the social well-being. Some authors speak about limitation while others prefer the terminology of exception. If we push the door beyond this epistemological debate, there is no denying that private copying remuneration is an exception according to article L122-5 of the French Code of Intellectual Property. The rationale of this exception is to allow consumers to copy for private use on a device such as blank CD’s. Thought as a modus vivendi between the rights holders, the industry and the consumers, the private copying remuneration was, to say it bluntly, outdated in the light of European[1] as well as national precedents[2]. The long standing calls for an aggiornamento[3] in order to reshape the Lang Statute of July 3, 1985 led to the drafting of a new statute which is transitory in nature. The new Statute n°2011-1898 enforced since December 21, 2011 was finally adopted by the Senate on the 19^th of December and we can infer from the presence of the Culture Ministry that the debates were vivid.

Private copying remuneration is before all a “levy fiscal in nature” [4] from which 25% are allocated to the promotion of culture within the French territory.  In 2010, this amounted to 189 millions of euro without taxes. The digital era paved the way for a sharp increase of the devices on which this levy was supposed to be raised. USB keys, hard drives, DVD’s memory cards are some glimpses of the equipment on which the levy applies. Notwithstanding, the draft of a statute on this matter must take into account the triptych industrials, right holders and public.

The statute, which amendments were all rejected, is innovative on miscellaneous stakes:

1. Liceity-(Article 1)- The levy applies provided the content which is subject to the copy is licit. This principle derives its strength from the rationale of the decision Simavalec issued on July 11, 2008 by French Administrative Supreme Court.
2. Surveys of use-(Article 2)-The Commission on private copying, which was erected in the aftermath of the Lang Statute, has been empowered to define the amount of the levy and the devices which were subject to it. In order to assess if a new device or equipment will be within the realm of the levy the Commission is now bound to made surveys of use.
3. Professional’s exemption-The new statute introduces an exemption for professionals which is the result of the decision Canal+ Distribution et a. issued on June 2011 by French Administrative Supreme Court.
4. Consumers information-(Article 3)-In fine, it is consumers while purchasing devices who pay the levy. Notwithstanding, consumers hardly know that they are paying such a levy while purchasing a blank DVD that is the reason why the new statute introduced a new set of rules which make it mandatory for industrials to inform consumers through packaging for instance of the amount of the levy and its use.

If the former draft of the article L311-1 of the French Intellectual property Code was clearly obsolete in the light of the increase of numerical devices, the new statute does not tackle the issue of touchpad. This loophole is problematic as the market is currently skyrocketing. This legal vacuum is nonetheless temporary as the President of the Commission on private copying highlighted. Lionel Tardy, a French MP, is afraid that this statute will be tackled by the Constitutional Court through a plea of unconstitutionality in a near future. As we already underlined, this statute is mainly transitory and precedes a further reshaping of the  juridical landscape in order to take into account concepts which pops up in the digital era such as cloud computing. The question must be raised if this statute is not stillborn. Arguably, the statute does not propose to reform the Commission on private copying, which institutional hurdles were pointed out by consumers associations as well as by lawyers.