The Council of State has cancelled Decision 13 (January 12 2011) of the Private Copy Commission because, in holding that all recording media were subject to a private copying levy without providing an exemption or a refund right for media – especially those bought for professional purposes – whose terms of use do not allow for a presumption of use for private copying, the decision ignored the applicable provisions of the IP Code.(1)

Facts

Several telecommunications companies requested the cancellation of Decision 13, which established the levy applicable to multimedia tablets and revised the levy established by Decision 11 (December 17 2008) for memory cards, USB sticks and external hard drives. Decision 13 also stated that all recording media would be subject to the levy, without providing an exemption or a refund right for media – especially those bought for professional purposes – whose terms of use do not allow for a presumption of use for private copying. The requests were joined so that the Council of State could rule on them together.

Decision

On June 25 2014 the Council of State cancelled Decision 13. It held that the IP Code was amended to provide that:

  • the private copying levy is not due for recording media (in particular, those bought for professional use) whose terms of use do not allow for a presumption of use of these materials for private copying;
  • an agreement providing for an exemption – and establishing its terms and conditions – may be concluded between exempt persons and the bodies enforcing remuneration for rights holders, pursuant to Article L 311-6 of IP Code; and
  • in the absence of an agreement, exempt persons can obtain a refund of the levy upon delivery of evidence.

Therefore, Decision 13 ignored the provisions of the IP Code and EU Directive 2001/29ECE – in particular as interpreted by the European Court of Justice in Padawan (October 21 2010), which required a distinction between private and professional use.

This new decision of the Council of State confirms its June 17 2011 ruling on Decision 11 (December 17 2008), in which it held that media for exclusive professional use could not be subject to the private copying levy.

Today, Decisions 14 and 15 of the Private Copy Commission remain valid, in that they do not in themselves impose the levy on media for exclusive professional use.

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Camille Pecnard