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Just between us, the private copying levy isn’t exactly the most exciting topic in music creation. You’re probably wondering what it is if you were born after 1995, since it’s a somewhat outdated concept—basically born around the same time as blank cassettes! That said, it’s potentially another source of income for you as a creator, so it’s good to be in the know.

The goal of this article is to explain why this support exists and who benefits from it, where the funds come from, who distributes them, and how they’re shared.

After reading this, I promise, this unfortunately obscure system—which, despite its noble goal of benefiting all creators of cultural products—will hold no more secrets for you! Ready? 1-2-3 Let’s jam.

What is private copying?

What you need to understand when discussing private copying is that we’re limited to a very specific framework for reproducing your works. Here, we’re talking about a situation where a person copies cultural products they’ve acquired legally and reproduces them solely for their personal use. These two conditions—legal purchase and non-commercial distribution—are essential for determining that we’re dealing with private copying. For example, downloading music purchased on a platform to your hard drive is private copying.

You’ve probably noticed: what also defines this practice is that it’s free for the consumer. In fact, since private copying is difficult (if not impossible) for copyright collection organizations to detect, it falls outside the protection provided by the Intellectual Property Code (IPC). As a result, creators do not receive the copyright royalties associated with their copied works. (If you need a refresher on the basics of copyright, we’ve written a great article on the subject‍).

Don’t worry, that’s exactly where private copying remuneration comes in, and we’ll explain it all to you.

Am I eligible for private copying remuneration for audio recordings?

In music rights jargon and for the reasons we just mentioned, private copying is described as an exception to copyright. The good news is that private copying remuneration was created to address this exception.

It therefore makes sense that, under French law, it is the copyright legislation that governs this mechanism. These beneficiaries are specifically identified in Article L311-1 of the CPI: “Authors and performers of works fixed on phonograms or videograms, as well as the producers of such phonograms or videograms, are entitled to remuneration for the reproduction of said works, made from a lawful source.”

There are many possible scenarios for determining who benefits from this right. For example, a single author may write both the music and/or lyrics of a work, while multiple authors may share responsibility for the music and/or lyrics. It is also entirely possible to be both an author and a performer, or to self-produce and wear all three hats at the same time.

All these roles can be held simultaneously, so all the rights attached to each role apply as well. If you combine these roles, you’ll receive multiple payments for private copying of sound recordings. So the key thing when multiple people are creating music is to agree on who’s working on what, so everyone gets credited for their work without any unpleasant surprises.

Remuneration for private copying compensates authors, performers, and producers who cannot be protected by copyright when their sound recordings are reproduced by individuals for their personal use.

Where does this royalty come from?

To fund this system, a fee is levied on the purchase of all products capable of reproducing music. The total amount of these levies is collected from manufacturers and importers of analog and digital recording media—devices that enable the copying of works—based in France. This includes, for example, smartphones, tablets, external hard drives, and USB flash drives.

The law is adapted in response to changes in consumer habits, and lawmakers are considering extending it to cloud services as well. That said, the shift toward digital media (from blank cassettes to streaming, to roughly describe the trend observed since the system’s inception) is already addressed by the inclusion of phones and computers.

To give you an idea, the private copying levy accounts for 1.43% of the cost of a 256 GB iPhone 11 (the amount of this levy is based on the purchase price and the device’s storage capacity), and if we add up the shares represented by smartphones and tablets out of the total collected by Copie France, we arrive at 70% of the total.

Copie France is the organization that centralizes these revenues. It then distributes the funds to Collective Management Organizations (CMOs) and Independent Management Entities (IMEs)—acting as intermediaries for various cultural sectors—which in turn distribute the royalties to rights holders. You must therefore be a member of a CMO such as SACEM or SDRM to receive your share of remuneration for private audio copying.

We’ve already discussed their basic operations in an article; we’ll quickly recap it here if you don’t have time to reread it. CMOs and IMOs operate in essentially the same way, with a few minor differences: you sign up by paying a membership fee, they collect your royalties (including the exception to this right, aka private copying remuneration), and take a commission adjusted according to the media and airtime of your tracks. What may vary from one organization to another is the percentage of their commission and whether or not you pay them an annual fee on top of the rest.

Now that you have a clearer picture of the context, we’ll explain how it works in practice.

How is this amount distributed?

First and foremost, you should know that this distribution is determined by Article L.311-7 of the CPI. This means that the rule it sets forth does not change; it does not depend on the organizations distributing it: “Half of the remuneration for private copying of phonograms goes to authors as defined by this Code, a quarter to performers, and a quarter to producers.”

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To give you an idea of what this represents, Copie France had 156,427,480 euros to distribute for private audio copying in 2020!

To comply with the law, the organization entrusts its funds to the OGCs, which must employ sophisticated methods to 1° identify the creators whose works are copied and 2° distribute 75% to the creators, with 50% going to authors, 25% to performers, and 25% to producers. They also manage the remaining 25%, which they are legally required to use to fund initiatives supporting cultural and artistic creation.

To do this, the OGCs rely on surveys commissioned by Copie France, which estimate how works are copied, as well as on analyses of radio airplay and record sales from the past six months. Based on this information, they can estimate who is eligible for private copying remuneration and in what amount.

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To illustrate the logic: in 2017, SACEM explains that it starts from the observation that 18% of copies are made via radio and that the remaining 82% come from records. Therefore, within the quarter of the remuneration for private audio copying allocated to performing artists, 18% compensates artists played on the radio and 82% goes to those who sell records.

Three-quarters of the total budget is allocated to creators, of which half goes to songwriters and the other half to performing artists and producers. Within these three categories, the OGCs compensate the most-played creators because they operate on the principle that these are also the most-copied.

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