Private digital reproduction

Private Copying Committee

Remuneration for private digital reproduction

Background

In France, remuneration for private copying was introduced by law 85-660 dated 3 July 1985 relating to rights associated with copyright, termed the “Lang law”; this covered private audio and audiovisual copying. Now enacted under the first chapter of Volume 3 of the Intellectual Property Code et seq., it was amended by the law of 17 June 2001 that now covers authors and publishers of graphic works.

This compensation, created originally for private audio and audiovisual copying, was initially levied on audio and video cassettes, then extended in 2000 to digital recording media such as CD-R, DVR-R and MP3 players a well as digital TV decoders incorporating hard discs for the recording of films. This remuneration is intended to compensate for the facility now available to consumers to copy music, audiovisual works or even books and images for strictly private and personal use.

The amount of this remuneration is laid down by law. Media to be subject to this levy and the amounts involved are both determined by an ad hoc administrative committee. Levy rates depend on the storage capacity, the compression ratio used by individuals when copying works and the amount of copying undertaken on this media as determined by the committee based on usage surveys carried out by a polling organisation amongst a representative sample of French consumers.

In 1986, only analogue media was involved, such as audio and video cassettes; however, with the development of new technologies for the digital copying of works, the committee decided in 2000 to broaden the scope; it introduced new levies on CD-R (€0.33 for 650 Mb), DVD-R (€1.27 for 4.7 Gb), portable music players, “mini-discs”, memory cards for MP3 players (€1.05 for 100 Mb), hard discs incorporated in digital set-top boxes, home DVD recorders (€10 for 40 Gb). To partially offset the loss of revenue suffered by authors of the written word and of still images, authors and publishers who are the new beneficiaries of this remuneration are paid 1.25 euro cents per CD-R sold (650 Mb) and 1.5 euro cent per floppy disc sold (1.44 Mb).

The levies are paid by the manufacturers and importers of blank recordable media to rights holder authors, interpreters, producers, and recently to authors and publishers of books and images. The revenue arising from these levies is collected by SORECOP and by COPIE France who pass it on to the societies that represent the various music, film, book and image sectors.

The distribution of rights must be carried out by a collective management society that pays out the sums due in accordance with a legally-approved scale, in other words equally between the author and the publisher of the copied book. Note that, under the law relating to this remuneration, 25% of the money collected must be used to promote creativity, support greater access to live performances and artistic educational activities.

In 2007 remuneration for private reproduction amounted to €155 million across all sectors: music, audiovisual, the written word and still images. The latter two represent only a very small part of the total, about €3 million.

This remuneration regime for private reproduction is now applied generally across Europe with the exception of the United Kingdom, Ireland and Luxembourg; it is for this reason that article 5.2(b) of the directive dated 22 May 2001 concerning copyright and associated rights in the Information Society, which aims to harmonise copyright across Europe, allows governments to retain an opt-out for private copying on condition that this applies to “reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject matter concerned”.

The exception for private copying, although universally recognised, either specifically as under French law or as a consequence of “fair use” as under US law, could have disappeared in a digital environment where anti-copying devices might have been introduced on all media containing works. However this concept, at one time being considered, now seems to have been generally abandoned. Additional remuneration for private copying, levied on recording media, is therefore still very much the norm, especially with the proliferation of digital media incorporating high-capacity memory such as the new generations of telephones, electronic organisers, computers and soon terminals using electronic paper, all of whish are technical devices that augment the private copying of works by an increasing number of consumers.

Private copying site

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Private Copying Committee

Remuneration for private copying is governed by Chapter one of Volume 3 of the Intellectual Property Code at articles L.311-1 et seq., as amended by article 15 of the law dated 17 July 2001. From now on, the right to remuneration also applies to authors and publishers of works recorded on any other media apart from the record player or video-player. The law states that this reproduction must be carried out on digital recording media:

“This remuneration is also due to authors and publishers of works recorded on any other media, in respect of any reproduction undertaken on digital recording media, in accordance with paragraph 2 of article L.122-5 [private copying].”

SOFIA has sat on the Private Copying Committee since February 2002 and acts on behalf of rights holders in the writing field, and especially on behalf of book authors and publishers.

The Private Copying Committee that was formed by the law dated 3 July 1985 is governed by articles L.311-5 and R.311-1 et seq. of the Intellectual Property Code. It is chaired by a government appointee designated by the Minister for Culture, and consists of 24 members, half of whom make up a college of rights holders for audio, audiovisual and graphic works, with the other half consisting of colleges of consumers and industrials. Its aim is to determine the types of media, levels of remuneration and payment methods for rights arising from private copying.

Amongst the decision taken by the Committee, three set new levels of remuneration in respect of books and still images:

- Decision n° 4 dated 10 June 2003 relating to CD-R and CDs,

- Decision n° 8 dated 9 July 2007 relating to DVD, memory cards, USB keys and standard external hard drives,

- Decision n°9 dated 11 December 2007 relating to so-called multimedia external hard drives that have no audio or video interface to enable the direct recording of music or films.

The written word still represents a minor part of private copying as witnessed by the still very limited use of digital copying onto removable media such as USB keys, external hard discs, CD-R or DVD, in the knowledge that many studies into this area indicate a high rate of reading and downloading of protected texts onto personal computers, still the favourite tool for the storage of text in comparison with other memory media whose high capacity makes them more suitable for the storage of works that demand significant storage volume.

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Remuneration for private digital reproduction

This remuneration is specifically governed by the following provisions of the Intellectual Property Code:

- Remuneration for the private copying of works on any media other than record players or video-players is distributed between rights holders by societies for the collection and distribution of PLR in respect of the private reproduction to which each work has been subject (art. L.311-6);

- It applies equally to authors and publishers (art. L.311-7);

- 25% of the money arising from remuneration for private reproduction must be used to promote creativity, support greater access to live performances and artistic educational activities(art. L. 321-9).

For the written word

Under a protocol signed on 25 October 2005 between ADAGP, SACD, SAIF and SCAM concerning the management of the written word element of remuneration for private reproduction, SOFIA collects the corresponding sums from SORECOP and COPIE France. A working group with members from writers’ societies decides on the distribution of sums due to authors on the basis of usage surveys, with SOFIA doing the same for that part due to publishers.

Regular studies carried out by a specialised institute (in this case, Médiamétrie) involving a sample of more than 9000 people, determine the categories of works copied and, consequently, the number of beneficiaries as a function of the total number of rights holders reported by each society.

For images

SORIMAGE is a holding company linking several collection societies in a single sector; this company was specially created in 2005 to collect and distribute remuneration in respect of the private copying of still images.

This company consists of two colleges: Authors and Publishers, within which can be found the collection societies representing rights holders for still images.

SOFIA is involved with both colleges in respect of that portion of rights due to publishers and for its members within the category of authors of “graphic novels” and “children’s illustrators”.

Distribution of sums within SORIMAGE is also undertaken on the basis of surveys carried out by Médiamétrie that measure in this case the amount of private copying as a function of the images contained in the various categories of work.

The Standing Committee of SOFIA submits to the Board of Management of SOFIA the results of this work and proposes distribution rules for this remuneration, both for that part due to publishers as well as for that due to those authors who are exclusively represented by SOFIA.

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Introduction

Article L.321-9 of the Intellectual Property Code (IPC) requires those organisations responsible for collecting and distributing rights payments to assign 25% of the sums collected in respect of private copying to activities in support of creativity and live performances and to providing training for writers. The remaining 75% is to be distributed equally between authors and publishers of books copied privately onto digital media. Such payments are intended to compensate for any loss of revenue resulting from private copying of works carried out by private individuals for their personal use. This aspect of cultural support is thus funded by these new authors’ rights adopted under the legislation dated 17 July 2001.

Societies representing authors and interpretive artists launched a publicity campaign in 2007 about remuneration for private copying, explaining to the public the origin of the funds to be used to implement their cultural support policy – see the Private copying internet site

For SOFIA, the total amount set aside for this cultural support activity amounts to €1,126,828 and this corresponds to 25% of the levies collected between 1 September 2003 and 31 December 2007.

How to submit a request for Support for Cultural Activity and Training

This support funding for creative projects or training is awarded in order of priority to members of SOFIA, to professional organisations or Associations representing the interests of writers whose proposals meet the conditions laid down in articles L.321-9 and R. 321-9 of the IPC.

Article R321-9 as amended by Decree n° 2001-809 dated 6 September 2001 - article 2 JORF 8 September 2001

I. –Support for creativity mentioned in article L.321-9 applies to that given:
a) To the creation of a work, its interpretation, to the first recording of a work or interpretation on audio or video recording media;
b) To defence, promotion or publicity activity undertaken in the interest of creators and their works.
II. – Support for live performances mentioned in article L.321-9 applies to that given:
a) To events offering live performances, either as a primary or secondary element;
b) To activity aimed at the promotion of artistic endeavours and services.
III. – Support for the training of artistes mentioned in article L.321-9 applies to support given to tuition activity aimed at writers and artistes-performers.

These sums must be used to fund activities that are directly linked to the output of writers or to their training.

In a letter dated 13 September 2003, the Principal Private Secretary of the Minister for Culture laid down a general outline of the new decree implementing article L.321-9 of the IPC, detailing “the classes of activity that are covered by this legislative provision with a view to offering legal safeguards to civil companies as well as to the organisations concerned”.

According to this letter, the following meet the criteria for “support given to defence, promotional or publicity activity undertaken in the interest of creators and their works:
a – conferences, exhibitions or seminars dedicated to the rights of creative artists or to matters relating to the defence of their professional interests in general; activities in defence of and publicity about the field of literary and artistic property rights and especially those intended to ensure respect of these rights”
b – events and activities aimed at promoting writers, artistes or their output in France or abroad such as festivals, meetings with professionals, artists’ sites, award of prizes, competitions, and heritage support activities;

c – technical and professional publicity activity concerning creativity, its topicality, specialisations, and national and international marketing, such as publications, the issue of catalogues and professional journals, data bases and information issued by resource centres aimed at the artistic professions, and export advice”.

This letter also states that “the available funds, which article L.321-9 of the IPC states are to be employed in support of creativity, the development of live performance and training, are not to be used to fund any assistance or activities that, however commendable, are only indirectly associated with this aim. The following are therefore unlikely to be approved for funding in this context:

d – Support for trade unions or professional defence organisations;
e – Trade union publications;
f – Commercial markets or fairs;
g – Costs incurred in respect of travel and accommodation for professionals attending an exhibition or other event;
h – Promotional activities with a strictly commercial purpose such as publicity or the funding of a trade stand in a market;
I – Social support measures;
J – Lobbying activity and arrangements that are not aimed at supporting creativity”.

Allocated funding must be the subject of an agreement between the society and the beneficiary.

Applications must include:
• A written request for support for cultural activities and for training submitted for the attention of the President of SOFIA;
• A briefing pack on the event or training envisaged;
• An estimated budget and funding plan. This budget must include a source of funding additional to that requested from SOFIA.

Applications with full supporting documents are to be submitted to:

SOFIA
Mme Florence-Marie Piriou
Deputy Director
199 bis boulevard Saint-Germain 75345 Paris cedex 07
fpiriou@la-sofia.org

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