Private Copying: Does the Failure to Pay the Remuneration Suffice to Constitute the Offence?

Imagine: you run a small shop in Propriano, and you sell blank cassettes. One day, you receive a formal notice from Copie France demanding payment of the private copying remuneration. You thought you had obtained a payment extension? Bad news: according to the Court of Cassation, the mere fact of not having paid in full and on time is sufficient to constitute a criminal offence. This decision of 15 June 2004 makes distributors of blank media tremble and raises questions for audiovisual professionals.

What is private copying remuneration? It is a levy on recording media (CDs, DVDs, USB keys, hard drives) that compensates authors, performers and producers for copies made by individuals. Established by Articles L. 311-1 et seq. of the Intellectual Property Code, it is due as soon as the media are placed on the market in France. For some traders, payment may seem like a mere administrative formality. But the Court of Cassation reminds us that it is a legal obligation, whose breach is criminally sanctioned.

So, what does this decision mean in practice? No more using negotiated payment extensions as a shield against prosecution. If you import or sell blank media without paying the levy, you risk criminal prosecution, regardless of any agreement you may have with the collective management societies. Let us analyse this decision and its implications for image and sound professionals.

The Facts: A Story Like Many Others

In 2001, a wholesaler from Porto-Vecchio imports blank video cassettes and resells them to local retailers. Like many, he does not pay the full private copying remuneration to Copie France (which manages collection for audiovisual media) or to the Société pour la Rémunération de la Copie Sonore (for audio media). The management societies sue him before the criminal court for the offence under Article L. 335-4, paragraph 3, of the Intellectual Property Code.

Before the lower courts, the defendant argues: 'I did obtain a payment extension, so I did not act intentionally.' The Bastia Court of Appeal agrees and acquits him, holding that the mental element (criminal intent) was not established. In their view, the fact of having negotiated an extension showed a willingness to regularise the situation, not to defraud.

But Copie France disagrees. It appeals to the Court of Cassation. In its decision of 15 June 2004, the Court of Cassation quashes the Court of Appeal's decision. It holds that the material element (failure to pay) and the mental element (intent) result from the mere fact of not having paid the remuneration due by the due date. Regardless of any payment extension: if payment is not made on time, the offence is constituted.

The Court's Reasoning — Analysed

To understand this decision, one must grasp two key concepts: the material element and the mental element of an offence. The material element is the act itself: not paying the remuneration. The mental element is the intention to commit that act. In most criminal offences, the prosecutor must prove both.

The Court of Appeal had considered that obtaining a payment extension negated criminal intent. But the Court of Cassation says the opposite: the mere fact of not having paid by the legal due date shows an intention not to comply with the law. Why? Because the remuneration is due as soon as the media are placed on the market. If you put cassettes up for sale without having paid the levy, you know you are not complying with the law. The intent is present.

This decision is based on Article L. 335-4, paragraph 3, of the Intellectual Property Code (version in force at the time), which punishes the failure to pay private copying remuneration with a fine of 300,000 euros and three years' imprisonment. The Court of Cassation recalls that this offence is a so-called 'material' offence: the mere breach of the obligation suffices, without needing to prove specific fraudulent intent.

This position has been consistent ever since. Lower courts can no longer rely on amicable arrangements to exclude criminal liability. A lesson for all professionals who think a payment extension agreement protects them.

What This Changes for You — Practically

For distributors and retailers of blank media: you must pay the private copying remuneration as soon as you put your products on sale. If you obtain a payment extension, it must be strictly adhered to. Even a delay, even with an agreement, can expose you to criminal prosecution. For example, a trader in Porto-Vecchio selling 500 blank DVDs per month without paying the levy (approx. €0.50 per DVD) risks a fine of several thousand euros.

For producers and artists: this decision strengthens your rights. Collective management societies (Copie France, SORECOP) can now take criminal action against infringers without having to prove complex fraudulent intent. A mere failure to pay suffices.

For individuals: you are not directly affected, but this levy increases the price of blank media. Know that its payment is mandatory for professionals, and non-compliance is sanctioned.

If you are in this situation, you must check your declarations to the management societies and pay on time. Do not wait for a formal notice. The amounts at stake can be significant: for a wholesaler with annual turnover of €100,000 on blank media, the remuneration due can reach €10,000 to €15,000 per year. A failure to pay can result in a criminal fine plus civil damages.

Four Tips to Avoid This Type of Dispute

• Declare your sales from the first month of activity: register with the collective management societies (Copie France for audiovisual, SORECOP for audio) even before importing or selling any media. Failure to declare is a separate offence.
• Strictly respect deadlines: the remuneration is payable quarterly. Even if you negotiate a payment schedule, any late payment constitutes an offence. Use an automated payment calendar.
• Keep payment receipts: if inspected, you must prove you paid on time. Keep bank statements and acknowledgements of receipt from the management societies.
• If you have financial difficulties, do not postpone payment: contact a lawyer specialising in intellectual property law immediately. A failure to pay can be regularised, but only before any legal action.

Further Reading: Related Case Law and Developments

This 2004 decision is in line with a consistent line of authority from the Court of Cassation. As early as 2001, the Criminal Chamber held that the mere failure to declare media sufficed to constitute the offence (Crim., 20 June 2001, No. 00-85.679). More recently, the Court of Cassation extended this principle to digital media (USB keys, hard drives) in a decision of 10 February 2015 (No. 13-87.292).

The trend is clear: judges favour a strict interpretation of the payment obligation. Collective management societies are increasingly active, multiplying legal actions. In 2023, Copie France recovered over €200 million in remuneration, partly through criminal convictions.

For the future, the question arises of extending this logic to streaming platforms and cloud providers, which also enable private copying. But for now, only physical media are concerned.

Checklist Before Acting

1. Have I declared my sales of blank media to the management societies? If not, do so without delay. Failure to declare is a separate offence.
2. Have I paid the remuneration due for each quarter? Check your records. Any late payment, even minor, may be sanctioned.
3. Have I obtained a payment extension? Know that it does not protect you criminally. Pay within the stipulated deadlines.
4. Have I kept proof of payment? If inspected, you must show you acted in good faith.
5. Have I consulted a lawyer? If in doubt, a 30-minute consultation can save you from a conviction.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →