CONSEIL D'ETAT, DECISION OF 17 JUNE 2011, CANAL+ DISTRIBUTION, MOTOROLA AND OTHERS

The exception of private copy and copyright levies are hot topics in France. After the Padawan decision of the Court of Justice of the European Union (CJEU)1, the Conseil d'Etat, the highest French administrative court, issued a particularly important decision in this regard.

In line with the Padawan decision, this recent decision of the Conseil d'Etat cancelled the decision n.11 of the French Private Copy Commission of 17 December 2008 which had set the rates applicable to several recording devices, such as USB keys and memory cards. The Conseil d'Etat ruled that the decision n.11 had not differentiated between recording devices for professional use, as opposed to recording devices that could be deemed to be used for private copying.

The decision of 17 December 2008 was issued by the Private Copy Commission following a previous decision of the Conseil d'Etat of 11 July 2008, which had cancelled previous decisions of the Private Copy Commission as they had included the volume of illegal copying in the calculation of copyright levies. Thus, the decision n.11 of 17 December 2008 was a cornerstone of the copyright levy legal framework in France and its cancellation will most likely trigger a new assessment of all applicable levy rates and the implementation of an updated regime exempting recording devices acquired for professional purposes.

Interestingly, the Conseil d'Etat decided to delay the implementation of the decision by a period of six months. It said that a retroactive cancellation or even a cancellation with immediate effect would not be possible to deal with, as it would open the floodgates to numerous claims and to a general confusion.  

For the time being, the implementation of the decision is suspended and nothing will change as yet. Thus, it will be business as usual until the Private Copy Commission issues its next decision to reflect the ruling of the Conseil d'Etat of 17 June 2011. However, further developments will have to be closely followed within the next few months.

The eventual cancellation of the decision n.11, in six months, should also result in the cancellation of the decisions n.12 and n.13 as they were based on the decision n.11 to a large extent. In view of this it seems that the French Private Copy Commission will have little choice but to issue a new decision within the next six months.

The decision of the Conseil d'Etat is a serious blow to the Private Copy Commission, which, at the time of the Padawan decision, had declared that it was compliant with the ruling of the CJEU - following the decision of the Conseil d'Etat it would no longer appear so.