Background

The IP Code provides that: "Once a work has been disclosed, the author may not prohibit: (…) copies or reproductions, obtained from lawful sources, strictly reserved for the copyist's private use and not intended for collective use (…)".

This means that once a work has been released into the public domain by the rights holder, copies can be made for personal use without seeking further consent.

French Courts have always taken the view that the act of "private copying" could only be performed by natural persons (as opposed to legal entities) and that therefore the private copying exception to infringement would not apply to them. Online providers offering private copying services through the cloud to consumers in relation to programmes broadcast on French TV were therefore deemed to infringe.

On-going discussions about extending this exception and the corresponding levies to include online and cloud services have continued for many years and this recent amendment was aimed at extending the scope of private copying to cloud services through the use of NPVRs.

Detail

The amendment to the IP Code extends the copyright exception and its corresponding levies to include radio and audio-visual content broadcast, copied and stored in the cloud through the use of NPVRs provided that the:

  • copy of the broadcasted content is requested by an individual; and
  • the recording of the content was requested before or during (i.e. for the remaining part of) the broadcast - Articles L.311-4 and L.331-9 of the IP Code.

Before taking advantage of this exception, providers of NPVRs are required to execute agreements with publishers and distributors of radio and audiovisual content to define the functionalities of storage services e.g. storage capacity, technical protection measures, etc. The Audiovisual Council (Conseil Supérieur de l'Audiovisuel) will mediate any disputes between the parties arising from these negotiations.

Article L. 311-3 of the IP Code provides that the levies paid by manufacturers and distributors of digital reproduction equipment and devices must now also be paid by publishers and distributors of radio and audiovisual content. However, this levy is subject to the number of users of the storage service provided, and the storage capacity made available. The amount of levy payable is yet to be determined by the "Commission Copie Privée".

Comment

The introduction of the new copying exception has raised further concerns from publishers of radio and audio-visual content, and particularly the French TV channels, as this new exception is deemed to be in direct competition with these platforms' own replay, catch up or on-demand services, which could lead to a change in consumer practices given the capacity of storage offered by NPVR providers.