- 1. How is the private copy levy managed?
The law organises the main principles of determination, collection and distribution of this remuneration (cf. title II book II of the Intellectual Property Code).
Determination of the levy has been entrusted to a joint Administrative Committee between beneficiaries and those liable, which defines the tariffs and recording media concerned as well as the conditions for declaration and collection.
The law provides that collection of the levy is made from those liable by specific societies (Art. L 311-6 of the Intellectual Property Code). SORECOP for audio and COPIE FRANCE for audiovisual works were created to this effect. They have since merged and COPIE FRANCE is now the sole entity for collecting the levy.
The sums collected by COPIE FRANCE are then distributed among rights holders’ societies: 50% for authors, 25% for producers and 25% for performing artists in the audio sector, in three equal shares (33% each) for audiovisual works and in two shares for the sectors of written works and the visual arts (50% for authors/50% for publishers).
COPIE FRANCE’s activity is under control of a Standing Supervisory Committee (Commission Permanente de Contrôle) for collective management societies (CMOs in English, SPRD in French), instituted by a law of 1 August 2000 and determined by Article L 312-13 of the Intellectual Property Code.
- 2. What media are subject to the private copy levy in France?
Consult the list of media subject to the private copy levy.
- 3. How can I find out the amount of the levy to be paid according to the type of media?
The remuneration rates are published in the Journal Officiel de la République Française with each decision voted. The COPIE FRANCE site publishes these rates in a single document.
Moreover, a law of 20 December 2011 on private copying now requires that buyers be informed of the amount of the levy when the recording media are sold. They must also be informed by an explanatory note relative to this levy and its purpose, which may be integrated in the device in an intangible way. The conditions for enforcing this obligation must be defined by decree of the Council of State (on 1 October 2012: decree not yet published).
- 4. Is VAT included in the tariffs provided on this site or not? What rates of VAT apply to the levy?
All tariffs listed in the COPIE FRANCE site are without VAT. The VAT rate depends on which society is invoiced :
a) when COPIE FRANCE invoice a liable company : the VAT is a mix between two shares, one with a 20% rate, the other one with a rate of 10 %. The share between the two rates is determined specifically for each kind of carrier submitted to the PCR.
b) when the carriers are sold, VAT is calculated on the total price of the product concerned, levy included.
- 5. Remuneration, levy or tax?
The private copy levy is not a “tax,” since the State does not collect it on its own behalf.
As decided by the Council of State, this levy is a particular modality of the exploitation of authors’ rights. This remuneration is the compensation for the exploitation of a work without prior authorisation from its auteur or rights holders.
This makes it a levy on the principle provided for by law (the Intellectual Property Code) for the benefit of rights holders (authors, artists and producers) whose works are copied.
- 6. “SACEM tax” / “SORECOP tax” / “COPIE FRANCE tax”..: What is the relationship of COPIE FRANCE with SACEM?
The private copy levy (which is not a “tax”) was originally collected by two societies, SORECOP and COPIE FRANCE, according to the media concerned. Since 2011, COPIE FRANCE has absorbed SORECOP and remains at the only entity in charge of collecting the levy from manufacturers and importers liable.
The COPIE FRANCE society is legally independent of SACEM but logistically integrated on its premises. SACEM is only one of the indirect beneficiaries among others of this levy. It is part of the college of authors through SDRM with other authors’ societies (SACD and SCAM).
- 7. Who must pay the private copy levy? Consumers when they purchase a recording device? How much of the total price of a CD does it represent?
Paid at source by importers or manufacturers, this levy is theoretically passed on by these same importers or manufacturers or their distributors to the final price paid by consumers. As an element in the cost price for the media concerned, this levy may also be taken, in whole or in part, from the manufacturers or distributors’ margin.
The repercussion, which may be partial, of the levy on the selling price to consumers is also one of the reasons why manufacturers and distributors of media subject to the private copy levy participate in negotiations on setting the amount of these levies in the Committee on Private Copying provided for by the Intellectual Property Code.
- 8. Why pay for music you download and burn, since we already pay a levy on blank media?
File sharing on P2P networks does not come under private copying since it implies that files are made available by each web user to the entire web community followed by transfer of files from the internaut offering them to those requesting the download. It is important to make a distinction between private copying and P2P, all exchanges in a telecommunications network coming under authors’ exclusive right to authorise or forbid exploitation of their works.
- 9. I have purchased products which already included the levy for another EU country. Do I have to pay it again in France?
If the media are intended for circulation in France, then only the French private copy levy should apply, knowing that it is due in principle for the first sale of the device in French territory.
In the event you have already paid the levy in the country in which the device was purchased, you can check if and how the society collecting the levy in that country can reimburse you since the device is no longer in the territory under its responsibility.
- 10. For online purchases of media on foreign sites, who should pay the levy? The consumer or the selling site online?
French law (Article L 311-4 of the Intellectual Property Code) provides for those liable to the private copy levy, “manufacturers” and “importers” and “intra-community buyers” of media in France. Until recently, the Court of Cassation, and before that the Court of Appeals of Paris*, had confirmed that, for only purchases made from foreign sites, French consumers, as importers, were sole responsible for paying the private copy levy. (*Decision of the Court of Appeals of Paris of 22 March 2007 / Decision of the Court of Cassation, 2nd Civil Division, of 27 November 2008, and decision to refer this to the Court of Appeals of Paris of 17 November 2010).
This situation was radically changed by the OPUS SUPPLIES decision delivered on 16 June 2011 by the Court of Justice of the European Union (CJEU case no. C 462-09 http://curia.europa.eu/juris/). In this case, between Stichting de Thuiskopie (the society in charge of collecting the private copy levy in the Netherlands) and OPUS SUPPLIES (an Internet site based in Germany but selling recording media to consumers living in the Netherlands), the CJEU decided that, in case of the sale of a recording device eligible for the private copy levy in the State of the consumer by a cybermerchant located abroad, internal must be interpreted to state that it is the cybermerchant who is liable for paying the remuneration.
The High Court further reinforced this principle in reminding member States of their due care to ensure necessary financial compensation to rights holders for any exception or limitation to reproduction rights, independently of the location of the seller concerned.
The result of this decision that the commercial activity of a site which proposes for sale online from a member State other than France to final users in French territory of media eligible for the private copy levy - makes those liable to COPIE FRANCE for this remuneration as specified in the provisions of Article L 311-4 of the Intellectual Property Code as interpreted, in light of Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the Information Society, by the CJEU in its OPUS SUPPLIES decision of 16 June 2011.
- 11. Is reimbursement provided for export companies?
Yes, in certain conditions and by providing COPIE FRANCE with a) proof that the levy was actually paid upstream and b) that the media were actually exported.
For further information, please contact firstname.lastname@example.org or call +331 471 587 55 / 56 / 57.
- 12. I am a professional. Can I benefit from the exemption from payment of the levy?
Yes, Article L 311-8 of the Intellectual Property Code organises, in certain conditions*, reimbursement of the levy or exemption from paying it for professionals. Law no. 2011-1898 of 20 December 2011 on private copying now extends mechanisms of reimbursement and exemption to persons acquiring recording media for professional purposes where the conditions of use which do not allow the presumption of use for private copying.
*NB: The abovementioned law does not make professional use a sufficient condition for exemption or reimbursement of the levy. The device must also be used, as specified by the Council of State, in “conditions which do not allow the presumption of use for private copying.” The sole fact that a device is used for professional purposes does not imply that it cannot also be used for private copying, one type of use not precluding another. What determines enforcement of the private copy levy is not the position of a person acquiring a device, but the fact that it is used in particular for making copies for private use.
Consequently, for the payment of the private copy levy to be excluded, two cumulative conditions must be combined: on the one hand, it is not sufficient for the devices to have been acquired by professional users; these devices must also obviously be reserve for uses other that making copies for private use, i.e. it must be obvious that they will not be used for private copying.
For complete information o reimbursement and the exemption convention proposed by COPIE FRANCE, please consult the “Exemption conditions” page.
- 13. How is the money from private copying used?
The law provides that 75% of the sums collected must be “distributed according to the private reproductions of each work,” i.e. societies like SACEM, which are beneficiaries of this remuneration, must identify very precisely which works have been copied and to which rights holders the sums collected should be distributed. Moreover, the law requires that the remaining 25% be used for initiatives to assist creation, the diffusion of live performances and spectacle vivant and training for artists. In 2011, nearly 50 million euros were used to this end.
The “Culture for private copying” site will inform you of all support initiatives conducted thanks to the private copy levy.
- 14. What methods are used to identify the works copied to redistribute this remuneration?
Each individual may make copies mainly from two sources of recordings: works broadcast on radio and television and works recorded on legally purchased CDs.
There are many methods used to identify which works have been copied. They entail either conducting regular surveys on what consumers copy, these surveys being completed by statistics on the sale and diffusion of works, or, when this is technically possible, by daily records of rates of copying, as is the case for television programmes. It is the basis of these sources of information that each collective management society to which COPIE FRANCE pays the remuneration, applies its rules of distribution established according to its categories of rights holders.
Thus, the identification of what is copied is organised in two steps:
1/ It is on the basis of data from these recording sources that we know what can be copied:
- For music, collective management societies have access to:
- radio and television broadcast reports which reveals which works are broadcast,
- information on sales of records and works reproduce.
- For audiovisual works, collective management societies refer to detailed reports on audiovisual works broadcast produced by channels.
2/ It is on the basis of studies of people’s copying practices that it is possible to know what is being copied; these private copying practices are regularly observed by survey companies.
- For audio private copying: copies made from radio broadcasts and those made from commercially sold records are determined on the basis of the results of these surveys. They also provide information on which musical genres are copied, grouped in four categories: variety, classical, jazz and other.
- For audiovisual private copying, people’s copying practices are identified by information provided by measurements takes by Médiamétrie (on the basis of the “Mediamat” panel) on the copying of audiovisual programmes.
- For music, collective management societies have access to:
- 15. Is the private copy levy still justifiable for blank CDs?
Maintaining the private copy levy is fully justified for the following reasons, in particular:
1. the existence of technical measures does not imply that they are effectively applied on all media. Thus, the public retains the possibility, even in the digital world, to make copies for private use;
2. there remain many sources for private copies, like broadcasting of music on radio and of audiovisual programmes on television (the latter source now being even explicitly guaranteed by the so-called “DADVSI” law of 1 August 2006 on copyright);
3. supposing it were possible from a legal standpoint to forbid all private copying, the reliability of technical measures to prevent private copying is not proven to date;
4. it remains in all events possible to make private copies in analogue form, before converting them into digital files.
- 16. Is the levy system for recording media fair?
It is fair to the extent it is the only source of revenue for authors or rights holders for copies made using them for private use.
For rights holders of a copied work, the amount of the remuneration they receive for private copying is very low when compared to the amount they receive for exploitation of the same work in a context other than private copying.
It would not be justified for private copying, which generates substantial profits for the industrialists manufacturing and marketing reproduction media for this sole purpose, not to provide revenue for creators, since the purchase of such media is often for the main purpose of reproducing their works.
Moreover, the rules applied by collective management societies receiving this remuneration ensure that distribution of the sums collected from the private copy levy is as fair and accurate as made possible by the available data. (For more information, consult the question: “What methods are used to identify the works copied to redistribute this remuneration?”)
Finally, part of the sums collected (25%) contributes to providing assistance to creation, the broadcasting of live performances and training actions for artists, thereby ensuring an indispensable function of support for cultural diversity.
- 17. Do Technical Protection Measures (TPM) nullify the right to make private copies?
(Technical Protection Measures)
Private copying is not a right, but an exception to reproduction rights. In these conditions, it is perfectly legitimate to apply Technical Protection Measures to restrict private copying without banning it.
But these technical measures have another, much broader use: by giving rights holders the possibility of controlling what is done with their works, they contribute to developing new modes of consumption of works (VOD; streaming on demand; download services with payment of a subscription fee, etc).
We can mention in particular that the DADVSI Law of 1 August 2006 led to the creation of ARMT, a regulatory authority in charge of adjusting the use of TPMs with exceptions to authors’ rights, including in particular the right to make copies. This authority sees to it that the technical measures implemented do not result in hindering normal application of the private copying exception.
Furthermore, the Intellectual Property Code guarantees that television programmes cannot be subject to technical protection measures which would deprive the public of the benefit of the private copying exception.
- 18. Regarding the decision of the Court of Justice of the European Union (SGAE C/Padawan) of 21 October 2010 concerning professional uses of media and cancellation of Decision no. 11 of the Committee of Article L 311-5 of the CPI.
COPIE FRANCE and collective management societies for the private copy levy in France took note of the decision by the Court of Justice of the European Union (CJEU) in PADAWAN vs. SGAE (C467/08) case and cancellation by the Council of State of Decision no. 11 of the Committee on private copying of 17 December 2008.
This cancellation rests exclusively on the interpretation given by the Court of Justice of the European Union in its decree of 21 October 2010 of the Directive of 22 May 2001 relative to of non-liability for professional uses.
Thus the decision of the Council of State cannot be analysed as a disavowal of the work accomplished by the Committee to exclude from the calculation of the private copy levy copies of illegal sources in accordance with the decision of the Council of State of 11 July 2008.
Moreover, rights holders emphasise that the reason for cancellation selected by the Council of State relates to a complex issue, for which the CJEU issued a decision only recently, after long debate, by a decision which has undergone various interpretations and while the provisions of the French Intellectual Property Code in whose framework the Committee exercises its mission do not suggest the solution adopted by the Court.
Moreover, the Council of State was justifiably concerned with no challenging the continuity of the private copy levy system by not making the cancellation announced retroactive and leaving the interested parties with a 6-month grace period during which the decision of 17 December 2008 would continue to apply, to draw the consequences of the decision just rendered.
It is now the responsibility of the public authorities and the Committee on private copying to apply the necessary adaptations to the private copy levy mechanism while preserving fair remuneration for rights holders.
- 19. What changes with the law of 20 December 2011 on Private Copying?
When they came into effect on 23 December 2011, Law no. 2011-1898 of 20 December 2011 and the Ministerial decree of 20 December 2011 modified the private copy levy system provided for in the Intellectual Property Code.
What changes with the law and decree:
1- The private copying exception and the amount of the levy provided for in the Intellectual Property Code must take into account only legal sources of copying.
2- The amount of the levy must be determined according to the use of the media as assessed on the basis of surveys.
3- The purchaser must be informed of the amount of the levy and an explanatory note on the private copy levy must be enclosed with the device. The conditions for enforcing this obligation will be defined by a decree from the Council of State.
4- Until 31 December 2012, unless there is a new decision of the Committee on Private Copying, the rates in Decision no. 11 of 17 December 2008 remain applicable.
5- Persons having acquired media for professional use may now request exemption or reimbursement of the private copy levy: see conditions.
6- The conditions for reimbursement are set in a decree. It must be specified in particular that the private copy levy must be mentioned in the invoices produced to request reimbursement.
For more information, consult the explanatory statement of the draft law of 20 December 2011.
- 20. To be declared to Copie France to calculate the remuneration applicable to tablets, telephones, standard and multimedia external hard drives, audio players...:
The storage/recording capacity to declare to COPIE FRANCE for media and devices with an operating system, firmware or software layer* is the overall rated storage capacity of the media or devices, expressed in Gb, as specified to the consumer on the product packaging.
Use studies having led the ad hoc committee** to set remuneration rates for these media and devices based their decision on their overall rated storage capacity excluding from calculation of the remuneration upstream the share of this capacity not used for copying content to be remunerated, including in particular that occupied by file for the operating system, firmware and software layers.
* Tablets, telephones, standard and multimedia external hard drives, Home NAS devices, set-top boxes and audio players.
** Committee provided for in Article L 311-5 of the Intellectual Property Code.