Notice concerning the private copying exception for television programs reproduced via remote access

In carrying out its task of regulating technological protection measures, Hadopi ensures that the technical restrictions implemented by online services do not have the effect of depriving users of the effective benefit of the private copying exception. On April 26, 2018, the High Authority received a request for an opinion under article L. 331- 36 of the French intellectual property code regarding the effective implementation of the private copying exception for television programs received via the Molotov TV platform.

The request for an opinion highlights the limitations of certain recording functions for some of the programs distributed by the Molotov TV platform, and asks Hadopi "whether the private copy requirement is met despite these restrictions" under article L. 3319 of the French intellectual property code.

Hadopi conducted a series of hearings with stakeholders concerned by the issue, as well as a technical analysis which confirmed the existence of numerous restrictions that limit the possibility of copying and prevent certain uses due to various technological protection measures.

Meeting on October 25, 2018, the HADOPI's board considered that "the private copying exception for linear programs presupposes at a minimum the possibility for its beneficiary to copy the programs received within the limits of the storage capacities acquired and subject to royalties. It follows from all these factors that the 20-hour threshold used to limit the recording capacity of programs from the same group of channels for paying subscribers to Molotov can be regarded as unjustified, since it is too restrictive".

In addition, and following on from Opinion n°2014-1 of September 11, 2014, the Collège considered that users must, provided that the copy remains protected against unauthorized use, be able to fully and freely dispose of their copy. In particular, this implies being able, as far as possible, to view it at any time, including in the absence of an Internet connection and as of any other medium.

On the other hand, as regards the other limitations raised by the author of the submission of a case before the court, such as the two-week limit on the possibility of scheduling recordings, or the impossibility of simultaneously recording several streams, it does not appear to the HADOPI's board that they constitute an infringement of the benefit of the private copying exception.

It should be noted that the present opinion of the Haute Autorité concerns the restrictions observed on the Molotov TV platform, the only existing remote copying service, and does not prejudge the position of the Haute Autorité should new services of this type appear.