Copyright: private copying

19 August 2005

Anna Lascar

22 April 2005, Paris Court of Appeal

The court affirms the right of a consumer to make a private copy of a DVD, and holds the insertion of an anti-copying mechanism in the DVD illegal.

The case

An individual purchased a DVD of the film “Mulholland Drive” directed by David Lynch, produced by Studio Canal and Films Alain Sarde and distributed by Universal. The film had been equipped with a technical mechanism which prevented it from being copied. The individual wished to make a video cassette analogue copy to view the film at his parents’ home who did not own a digital DVD player. He was unable to make such copy due to the anti-copying mechanism inserted in the DVD.

The individual, supported by a Consumer’s Rights Association, brought an action alleging violation of the private copyright as contained in Articles 122-5 and 211-3 of the French Intellectual Property Code

The decision of the Court

In overturning the decision of the lower court, the Court of Appeals interpreted Article 122-5 of the French Intellectual Property Code in light of the European Directive on author’s rights of 22 May 2001 (the “Directive”) which had not yet been transposed into French law. The Court concluded that making a copy of a DVD for private usage was not illegal, and thus that the producer and the distributor had caused prejudice to the consumer by using a mechanism which prevented a copy.


Article 122-5 (2) of the French Intellectual Property Code provides that:

“Once a work has been divulged, the author can not prohibit copies or reproductions strictly reserved for the private use of the person who makes the copy and not intended for a collective utilisation…..”

The Court considered that the foregoing exception permitting private copying is not limited in any manner under French law to the reproduction of the work on a particular format. The fact that the work was registered in a digital format does not change this analysis of French internal law. Moreover, since the remuneration to authors for private copying is taxed on blank digital formats, for copies realised on these formats, it is clear that the French legislature authorised digital copying, or else this tax would have no meaning.

The Court also determined that the provisions of French private copy law had to be interpreted in light of the Directive, even though not yet transposed into French law. The defendants had argued that the Directive imposed on the Member States not to create obstacles for measures taken to prevent piracy. The Court considered that the Directive permitted the Member States to adopt an exception for private copy to the extent that the authors receive an equitable compensation which is the case in France by reason of the tax on blank copies. The Court applied the “three step test” of the Directive, and held that the existence of a private copy of a DVD was a special situation provided for under French law and did not constitute in itself a serious prejudice to the normal exploitation of the work, nor cause an unjustified prejudice to the rights holders since this use was remunerated by the tax on blank copies.

Finally, the Court held that the use of a copy of a DVD in analogue form constituted private use since it was to be used in the context of a small family group.


The defendants have appealed the case to the highest French Court, the Cour de Cassation. Moreover, this case must be viewed in the context of the transposition of the Directive in French law. Thus, in an area where the court has to some extent anticipated the legislative action, any final outcome of this decision will depend on how the French legislature addresses the Directive in French internal law.

First published in the July 2005 issue of E-commerce Law Reports, Volume 5, Issue 3.