Hogan Lovells

Hogan Lovells' LimeGreen IP

The site will give you an overview of Intellectual Property law and related procedures, and how these may differ from country to country.

Copyrights - Copyright protection - France

Overview

There is no copyright protection for works per se in France but authors' rights exist. Authors' rights protection in France is awarded to "works of the author's mind", even if this notion is not defined by French law. They thus include an important personal dimension linked to the creator.

In line with the tradition of civil law countries, authors' rights in France include patrimonial rights, on the one hand, and moral rights, on the other.

French authors' rights law has been built step by step through the centuries, the first modern legislation being the Revolutionary Decrees of January 1791 and July 1793.

French authors' rights law is now governed by the first part of the French Intellectual Property Code ("IPC"), adopted on 01 July 1992, which combines a 1st Book on authors' rights (providing rights to creators), a 2nd Book on neighbouring rights (providing rights to other people, such as performers and producers), and a 3rd Book providing several different provisions (including sui generis rights to database producers).

In its decision n° 2006-540 DC of 27 July 2006, the French Constitutional Council ruled that the Intellectual Property Rights, including authors' and neighbouring rights relate to property rights which belong to the Human Rights protected by Article 2 of the French Declaration of Human Rights of 1789.

Frequently Asked Questions

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-What are the works that can be protected?

Article L. 112-2 of the IPC provides a non-exhaustive list of protected works, including:

  • Books, brochures and other writings
  • Conferences, allocutions, sermons, pleadings and other works of same nature
  • Dramatic works
  • Choreographic works
  • Musical compositions
  • Cinematographic works
  • Drawings, paintings, architectural works, sculptures, engravings, lithographs
  • Graphic or typographic works
  • Photographs
  • Works of applied arts
  • Illustrations, geographical maps
  • Plans, sketches and works regarding geography, topography, architecture and sciences
  • Software, including the preparatory development material
  • Creations of clothing.

Other works, such as translations, adaptations or summaries, as well as databases (following specific requirements) are also protected by the IPC.

Authors' rights result from the creation of the work itself, if it is original. This means that (i) the protected work has to be created (ii) the protected work should show the imprint of the personality of the author, and (iii) the gender, the form of expression, the merit or the destination of the work is indifferent to the protection.


-Will the work be protected in other countries?

Authors' rights protection is governed by French law. There is no European authors' rights protection, contrary to Community registered designs, for instance.

The main French source is the IPC, which codified in particular the law of 11 March 1957 on literary and artistic works and the law of 03 July 1985 on authors' rights and neighbouring rights of phonograms and video producers and audio-visual communication companies. The IPC also includes more recent laws relating to authors' rights, such as the law n° 2006-961 of 01 August 2006 relating to authors' rights and neighbouring rights in the information society.

France, like numerous other countries, is a member of international conventions ensuring the same principles of authors' rights in relation to non-citizens. The underlying idea is to grant minimum rights to all people. The main conventions in this regard are:

  • Revised Berne Convention for the Protection of Literary and Artistic Works (9 October 1886 – revised in 1952)
  • Universal Copyright Convention (1952)
  • Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961)
  • World Trade organizations Agreement on Trade-Related Aspects of Intellectual Property Rights – TRIPS (1994)
  • World Intellectual Property Organization Copyright Treaty (1996)
  • WIPO Performances and Phonograms Treaty (1996).

-What are the requirements for copyright protection?

Accrual

Nothing is mentioned in the IPC regarding the compatibility of French authors' rights with other IP rights. For historical reasons, the above mentioned Article L. 112-2 of the IPC includes in particular "works of applied arts" in its list of works protected by authors' rights, whereas the 5th Book of the 2nd Part of the IPC deals with industrial designs and models. Even if it is not mentioned in the French IPC, the principle of unity of art has been developed and requires considering in an identical way the creations of pure art and those of applied arts. Several types of protection, such as registered design, a trademark and/or author rights, can then cover the same work.

Registration

The mere creation of a work generates authors' rights, and the protection is not subject to any formal registration requirement in France. The rights differ from the other intellectual property rights, such as registered designs, trademarks or patents. However, in France, the existence of a filing or a registration, in particular within the framework of litigation, can help to show the paternity and the date of creation of the work. In this regard, the author can be identified as the author in particular via (i) a French notary public or a French court bailiff, (ii) a "Soleau" envelope containing the work filed with the French Industrial Property Office (INPI) or (iii) a collecting society, depending on its corporate purpose.

Term of protection

The term of protection under the French IPC differs according to the rights at issue.

Moral rights are perpetual.

Since the law of 27 March 1997, the protection of the patrimonial rights lasts, as a matter of principle, during the author's life, the current year of his/her death and the following 70 years after his/her death – or the death of the last surviving collaborator in case of works of collaboration or audio-visual works. For anonymous, pseudonymous or collective works, the protection of 70 years starts on 01 January following the year of first publication of the work at issue. Specific rules in France also apply to works published posthumously.

The IPC provides for specific rules regarding neighbouring rights, the protection lasting, as a matter of principle, 50 years after the first communication to the public of the work.


-What are the author's rights under the national law?

The author benefits from both patrimonial and moral rights.

French law puts an important emphasis on moral rights. The French IPC deals with the issue before the patrimonial rights and, as a general trend, French courts strictly apply the rules on moral rights.

According to Article L. 121-1 of the French IPC, moral rights are personal, perpetual, unalienable and imprescriptible.

The author is entitled to the paternity right over the protected work. This means in particular that:

  • the name of the author should always be displayed
  • contracts transferring authorship should be void
  • contracts providing for the anonymity of the author are only valid if the provision is revocable.

Moreover, the author has the right to have the protected work respected by third parties, including the owner of the patrimonial rights or the owner of the support. This means in particular that:

  • the author may prohibit any modification of the form of the work, by modification, amendments, alteration, adjunction, etc.
  • the author may prohibit any modification of the spirit or essence of the work.

According to Article L. 121-2 of the French IPC, the author is the only one to decide whether or not to disclose the protected work.

Finally, the author has the right to reconsider the transfer of the patrimonial rights and withdraw the work vis-à-vis the assignee, if the work has already been disclosed and in exchange for compensation for the economic loss of the assignee.

Patrimonial rights are notably transferable, exclusive, temporary, and independent from each other.

As a principle, the author may prohibit without his/her consent:

  • any reproduction of the work
  • any performance of the work, including any communication of the work to the public
  • any adaptation or translation of the work.

The principle of exhaustion of rights applies within the European Union.

As soon as the work is disclosed, exceptions to the author's monopoly apply. For example, the author cannot prohibit:

  • private and free performances within a family circle
  • private uses
  • short citations, press reviews
  • parodies.

The author of graphic and plastic works, from the European Union, is entitled to royalties over the sales of the material supports ("droit de suite").


-How do you assign copyrights / author rights?

The first owner of the authors' rights over the work is the author/creator. As a principle, and because of the personal dimension associated with creations under French law, the author can only be an individual.

There is a legal presumption that the author is the one under whose name the work is disclosed.

It is also possible that many individuals contributed, effectively or intellectually, to the creation of a work. The IPC defines those works as works of "collaboration". The individuals who created the work will then be co-authors, unless the contributions can be considered independently.

Moreover, works may be considered as "collective works", when they have been created on the initiative of an individual or an entity that edits, publishes or discloses it under his direction and his name and in which it is impossible to allocate a distinct right to each contributor. In this case, the initiator will own the rights to the work ab initio.

In the case of a composite work, which is the creation of a new work incorporating a pre-existing work without the contribution of the original creator, the creator of the second work will be considered the author.

There is no automatic assignment of the authors' rights over a creation to a company from its employees, except for software programs. Specific rules also apply to journalists.

The assignment of patrimonial rights is possible via contracts.

As a principle, there may not be any contract over future works and contracts should be in writing.

The assignment contracts, exclusive or not, have to specifically mention the extent of the transferred rights, their purpose, place and duration. In France, there is no license contract on authors' rights as such, but only assignment contracts for specific uses, which are thus equivalent to licenses.

Assignment contracts are restrictively interpreted by French courts, in order to protect the authors: a right which is not mentioned within the list of assigned rights is considered as being not assigned by the author.

As a principle, the remuneration of the author should be proportional to the sale or exploitation of the work. Exceptions may apply in some cases allowing a lump sum.

The exploitation of rights may also be done through different types of contracts such as:

  • Publishing contracts
  • Performance contracts
  • Audio-visual production contracts
  • Contract for hire for advertising.

These different contracts apply specific rules.