according to which private copying exception involves

Can benefit from exceptions to copyright such as the right to copy, without authority, works for his private use even if the source and copied works is prohibited That is the question posed by the Court of cassation in its decision issued on May 30, 2006, without however a formal response.

The highest French Court has set aside a judgment of the Court of appeal of Montpellier on March 10, 2005, which had loud noise at the time to have decided in substance that the fact of having downloaded films or music on the Internet, and then to have then "engraved" part of these works uploaded on CDs, was not an act of infringementsuch as "burn" CDs from other CD "loaned by buddies."

The Court of Montpellier had motivated his decision by the fact that the accused had made these copies only for "private use" and that he was shown no collective title use. Montpelliérains magistrates had decided that the accused could benefit from the exception for private copying provided for in article l. 122 - 5 of the Code of intellectual property which provides that, where the work has been disclosed, the author may not prohibit "copies or reproductions strictly reserved for the use of the copyist and not intended for collective use.

The Court of Montpellier was disallowed by the Court of cassation who criticized him for having taken this decision "to explain the circumstances in which the works had been made available to the accused" and especially respond to the arguments by music producers and films, according to which private copying exception involves, in order to be acceptedthe source of the copy "is lawful and necessarily free from any infringement of the prerogatives of the holders of rights in the work concerned".

It is the first time that the jurisprudence is also clearly the question of the legality of the source download or media that led to a copy of a work, question that currently divides the courts and practitioners of law.

In a first opinion, regardless of whether the copied work has been obtained lawfully (example: purchase of an original CD in a store) or illegal (example: download of a work made available on the Internet without permission). Once the user copy for non-collective and strictly private use, this use would benefit from the exception for private copying. One of the arguments advanced in support of this thesis is that the Act does not expressly require that the source be lawful to benefit from the exception for private copying.

Contravention of the treaties

In the opposite direction, a second opinion considers that the private copying exception is an exception to copyright law and must, therefore, be interpreted restrictively. Therefore, the benefit of private copying cannot apply if the copy is created from a work made available without the permission of the author. On the other hand, allow unlimited download on the Internet would be contrary to the international treaties signed by the France which prohibit in substance that the private copying is "normal exploitation" of the work and cause "unreasonably prejudice the legitimate interests of the author. It is clear that allow any user to download thousands of works on the Internet on the pretext that these downloads would be made "private" violates clearly the legitimate interests of the author.

The Court of cassation but leaves to the Court of appeal of Aix-en-Provence, which it referred the case to decide this issue but adopted motivation apparently suggests a preference for the second opinion.

Furthermore, the Dadvsi Bill (1) in the course of discussion in Parliament now (2) that provides the download unauthorized (like making available) "personal purposes", proposed works on the Internet (3) is a violation.

Downloading without permission is illegal and a copy of a work obtained through such downloads should not able to benefit from the exception for private copying.