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юридическая консультация по телефону от Ливинбук и партнеры
Кодекс интеллектуальной собственности Франции (на английском языке)
C O D E
- Law on the Intellectual Property Code (Legislative Part) (No. 92-597 of July 1, 1992, as last amended by Laws Nos. 94-361 of May 10, 1994, and 95-4 of January 3, 1995) Intellectual Property Code
Part One - Literary and Artistic Property
- Book I - Copyright
- Book II - Neighboring Rights
- Book III - General Provisions
- Part Three - Application to the Overseas Territories and the Territorial Entity of Mayotte
- Book VIII - Application to the Overseas Territories and the Territorial Entity of Mayotte
The provisions annexed to this Law shall constitute the Intellectual Property Code (Legislative Part).
The references contained in the provisions of a legislative nature referring to provisions repealed by Article 5 of this Law shall be replaced by references to the corresponding provisions of the Intellectual Property Code.
The provisions of the Intellectual Property Code (Legislative Part) that quote articles from other codes, by reproducing them, shall automatically be amended by the effect of subsequent amendments to those articles.
This Law shall apply to the overseas territories and to the territorial entity of Mayotte.
There shall be repealed:
- - Articles 418, 422, 422-1, 422-2, 423-1, 423-2, 423-5 and 425 to 429 of the Penal Code;
- Articles 1 to 16 of the Law of July 14, 1909, on industrial designs;
- the Law of February 3, 1919, extending the term of literary and artistic property rights by reason of the war;
- Article 1 of the Law of April 4, 1931, making applicable to French nationals in France the provisions of the international conventions that may be more favorable than those of domestic law for protecting rights deriving from industrial property;
- Law No. 51-444 of April 19, 1951, setting up a National Institute of Industrial Property;
- Law No. 51-1119 of September 21, 1951, concerning the extension by reason of the war of the term of literary and artistic property rights and repealing the validated Law of July 22, 1941, on literary property;
- Law No. 52-300 of March 12, 1952, repressing the infringement of creations of the seasonal industries of dress and articles of fashion;
- Law No. 57-298 of March 11, 1957, on literary and artistic property;
- Law No. 57-803 of July 19, 1957, instituting a limitation on seizures with respect to copyright;
- Law No. 64-689 of July 8, 1964, on application of the principle of reciprocity in copyright protection;
- Patent Law No. 68-1 of January 2, 1968;
- Law No. 70-489 of June 11, 1970, on the protection of new plant varieties, with the exception of its Article 36;
- Law No. 77-682 of June 30, 1977, on the application of the Patent Cooperation Treaty, done at Washington on June 19, 1970;
- Law No. 77-683 of June 30, 1977, on the application of the Convention on the grant of European patents, done at Munich on October 5, 1973;
- Law No. 77-684 of June 30, 1977, on the application of the Convention for the European Patent for the Common Market (Community Patent Convention) done at Luxembourg on December 15, 1975;
- Law No. 78-742 of July 13, 1978, amending and supplementing Law No. 68-1 of January 2, 1968, to valorize inventive activity and amend the arrangements for patents for invention;
- Law No. 84-500 of June 27, 1984, amending and supplementing certain provisions of Law No. 68-1 of January 2, 1968, on patents for invention, as amended;
- Articles 1 to 51, 53 and 55 to 66 of Law No. 85-660 of July 3, 1985, on authors’ rights and on the rights of performers, producers of phonograms and videograms and audiovisual communication enterprises;
- Article 95 of Law No. 86-1067 of September 30, 1986, on the freedom of communication;
- Law No. 87-890 of November 4, 1987, on the protection of topographies of semiconductor products and on the organization of the National Institute of Industrial Property;
- Law No. 90-510 of June 25, 1990, making the effective term of protection afforded by patents the same for medicines and for other products;
- Articles 1 to 19, 21 to 47 and 49 to 54 of Law No. 90-1052 of November 26, 1990, relating to industrial property;
- Law No. 91-7 of January 4, 1991, on trademarks and service marks.
There shall be inserted at the beginning of Article A of the Law of May 6, 1919, on the protection of appellations of origin, a paragraph worded as follows:
"The elements constituting an appellation of origin are defined in Article L. 721-1 of the Intellectual Property Code reproduced hereafter:"
INTELLECTUAL PROPERTY CODE
Literary and Artistic Property
SUBJECT OF COPYRIGHT
Nature of Copyright
The author of a work of the mind shall enjoy in that work, by the mere fact of its creation, an exclusive incorporeal property right which shall be enforceable against all persons.
This right shall include attributes of an intellectual and moral nature as also attributes of an economic nature, as determined by Books I and III of this Code.
The existence or conclusion of a contract for hire or of service by the author of a work of the mind shall in no way derogate from the enjoyment of the right afforded by the first paragraph above.
A work shall be deemed to have been created, irrespective of any public disclosure, by the mere fact of realization of the author’s concept, even if incomplete.
The incorporeal property right set out in Article L. 111-1 shall be independent of any property right in the physical object.
Acquisition of such object shall not vest in the acquirer of the object any of the rights afforded by this Code, except in those cases referred to in the provisions of the second and third paragraphs of Article L. 123-4. These rights shall subsist in the person of the author or of his successors in title who, nevertheless, may not require the proprietor of the physical object to make such object available to them for the exercise of those rights. However, in the event of manifest abuse by the proprietor preventing exercise of the right of disclosure, the first instance court (tribunal de grande instance) may take any appropriate measure, in accordance with the provisions of Article L. 121-3.
Subject to the international conventions to which France is party, in the event that it is ascertained, after consultation with the Minister for Foreign Affairs, that a State does not afford to works disclosed for the first time in France, in any form whatsoever, protection that is adequate and effective, works disclosed for the first time on the territory of such State shall not enjoy the copyright protection afforded by French legislation.
However, neither the integrity nor the authorship of such works may be impaired.
In the cases referred to in the first paragraph above, the royalties shall be paid to general interest bodies designated by decree.
Subject to the international conventions, foreigners shall enjoy in France the rights afforded to authors of software by this Code on condition that the law of the State of which they are nationals or on the territory of which they have their place of residence, their registered offices or an effective establishment affords its protection to software created by French nationals and by persons having in France their place of residence or an effective establishment.
The provisions of this Code shall protect the rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose.
The following, in particular, shall be considered works of the mind within the meaning of this Code:
- 1° Books, pamphlets and other literary, artistic and scientific writings;
2° Lectures, addresses, sermons, pleadings and other works of such nature;
3° Dramatic or dramatico-musical works;
4° Choreographic works, circus acts and feats and dumb-show works, the acting form of which is set down in writing or in other manner;
5° Musical compositions with or without words;
6° Cinematographic works and other works consisting of sequences of moving images, with or without sound, together referred to as audiovisual works;
7° Works of drawing, painting, architecture, sculpture, engraving and lithography;
8° Graphical and typographical works;
9° Photographic works and works produced by techniques analogous to photography;
10° Works of applied art;
11° Illustrations, geographical maps;
12° Plans, sketches and three-dimensional works relative to geography, topography, architecture and science;
13° Software, including the preparatory design material;
14° Creations of the seasonal industries of dress and articles of fashion. Industries which, by reason of the demands of fashion, frequently renew the form of their products, particularly the making of dresses, furs, underwear, embroidery, hats, shoes, gloves, leather goods, the manufacture of fabrics of striking novelty or of special use in high fashion dressmaking, the products of manufacturers of articles of fashion and of footwear and the manufacture of fabrics for upholstery shall be deemed to be seasonal industries.
The authors of translations, adaptations, transformations or arrangements of works of the mind shall enjoy the protection afforded by this Code, without prejudice to the rights of the author of the original work.
The same shall apply to authors of anthologies or collections of various works which, by reason of the selection and arrangement of their contents, constitute creations of the mind.
The title of a work of the mind shall be protected in the same way as the work itself where it is original in character.
Such title may not be used, even if the work is no longer protected under Articles L. 123-1 to L. 123-3, to distinguish a work of the same kind if such use is liable to create confusion.
Owners of Copyright
Authorship shall belong, unless proved otherwise, to the person or persons under whose name the work has been disclosed.
"Work of collaboration" shall mean a work in the creation of which more than one natural person has participated.
"Composite work" shall mean a new work in which a preexisting work is incorporated without the collaboration of the author of the latter work.
"Collective work" shall mean a work created at the initiative of a natural or legal person who edits it, publishes it and discloses it under his direction and name and in which the personal contributions of the various authors who participated in its production are merged in the overall work for which they were conceived, without it being possible to attribute to each author a separate right in the work as created.
A work of collaboration shall be the joint property of its authors.
The joint authors shall exercise their rights by common accord.
In the event of failure to agree, the civil courts shall decide.
Where the contribution of each of the joint authors is of a different kind, each may, unless otherwise agreed, separately exploit his own personal contribution without, however, prejudicing the exploitation of the common work.
A composite work shall be the property of the author who has produced it, subject to the rights of the author of the preexisting work.
A collective work shall be the property, unless proved otherwise, of the natural or legal person under whose name it has been disclosed.
The author’s rights shall vest in such person.
The authors of pseudonymous and anonymous works shall enjoy in such works the rights afforded by Article L. 111-1.
They shall be represented in the exercise of those rights by the original editor or publisher, until such time as they reveal their true identity and prove their authorship.
The declaration referred to in the preceding paragraph may be made by will; however, any rights previously acquired by other persons shall be maintained.
The provisions in the second and third paragraphs above shall not apply if the pseudonym adopted by the author leaves no doubt as to his true identity.
Authorship of an audiovisual work shall belong to the natural person or persons who have carried out the intellectual creation of the work.
Unless proved otherwise, the following are presumed to be the joint authors of an audiovisual work made in collaboration:
- 1° The author of the script;
2° The author of the adaptation;
3° The author of the dialogue;
4° The author of the musical compositions, with or without words, specially composed for the work;
5° The director.
Authorship of a radio work shall belong to the natural person or persons who carried out the intellectual creation of the work.
The provisions of the final paragraph of Article L. 113-7 and those of Article L. 121-6 shall apply to radio works.
Unless otherwise provided by statutory provision or stipulation, the economic rights in the software and its documentation created by one or more employees in the execution of their duties or following the instructions given by their employer shall be the property of the employer and he exclusively shall be entitled to exercise them.
Any dispute concerning the application of this Article shall be submitted to the first instance court of the registered place of business of the employer.
The first paragraph of this Article shall also apply to servants of the State, of local authorities and of public establishments of an administrative nature.
An author shall enjoy the right to respect for his name, his authorship and his work.
This right shall attach to his person.
It shall be perpetual, inalienable and imprescriptible. It may be transmitted mortis causa to the heirs of the author.
Exercise may be conferred on another person under the provisions of a will.
The author alone shall have the right to divulge his work. He shall determine the method of disclosure and shall fix the conditions thereof, subject to Article L. 132-24.
After his death, the right to disclose his posthumous works shall be exercised during their lifetime by the executor or executors designated by the author. If there are none, or after their death, and unless the author has willed otherwise, this right shall be exercised in the following order: by the descendants, by the spouse against whom there exists no final judgment of separation and who has not remarried; by the heirs other than descendants, who inherit all or part of the estate and by the universal legatees or donees of the totality of the future assets.
This right may be exercised even after expiry of the exclusive right of exploitation set out in Article L. 123-1.
In the event of manifest abuse in the exercise or non-exercise of the right of disclosure by the deceased author’s representatives referred to in Article L. 121-2, the first instance court may order any appropriate measure. The same shall apply in the event of a dispute between such representatives, if there is no known successor in title, no heir or no spouse entitled to inherit.
Such matters may be referred to the courts by the Minister responsible for culture.
Notwithstanding assignment of his right of exploitation, the author shall enjoy a right to reconsider or of withdrawal, even after publication of his work, with respect to the assignee. However, he may only exercise that right on the condition that he indemnify the assignee beforehand for any prejudice the reconsideration or withdrawal may cause him. If the author decides to have his work published after having exercised his right to reconsider or of withdrawal, he shall be required to offer his rights of exploitation in the first instance to the assignee he originally chose and under the conditions originally determined.
An audiovisual work shall be deemed completed when the final version has been established by common accord between the director or, possibly, the joint authors, on the one hand, and the producer, on the other.
Destruction of the master copy of such version shall be prohibited.
Any change made to that version by adding, deleting or modifying any element thereof shall require the agreement of the persons referred to in the first paragraph above.
Any transfer of an audiovisual work to another kind of medium with a view to a different mode of exploitation shall require prior consultation with the director.
The authors’ own rights, as defined in Article L. 121-1, may be exercised by those authors only in respect of the completed audiovisual work.
If one of the authors refuses to complete his contribution to an audiovisual work or is unable to complete such contribution due to circumstances beyond his control, he shall not be entitled to oppose use of that part of his contribution already in existence for the purpose of completing the work. He shall be deemed the author of such contribution and shall enjoy the rights deriving therefrom.
Except for any stipulation more favorable to the author, such author may not:
- 1° Oppose modification of the software by the assignee of the rights referred to in item 2° of Article L. 122-6 where such modification does not prejudice either his honor or his reputation;
2° Exercise his right to reconsider or of withdrawal.
The author alone shall have the right to make a collection of his articles and speeches and to publish them or to authorize their publication in such form.
With regard to all works published in such way in a newspaper or periodical, the author shall maintain his right, unless otherwise stipulated, to have them reproduced or to exploit them in any form whatsoever, on condition that such reproduction or exploitation is not such as to compete with the newspaper or periodical concerned.
Whatever the marriage arrangements and on pain of nullity of any clause to the contrary contained in a marriage contract, the right to disclose a work, to lay down the conditions for exploiting it and for defending its integrity shall remain vested in the spouse who is the author or in the spouse to whom such rights have been transmitted. This right may not be brought in dowry nor acquired as community property nor subsequently acquired as community property.
The monetary proceeds resulting from the exploitation of a work of the mind or from the total or partial assignment of the right of exploitation shall be subject to the general rules of law applicable to marriage arrangements only if acquired during the marriage; the same shall apply to savings made on such account.
The provisions laid down in the preceding paragraph shall not apply if the marriage was contracted prior to March 12, 1958.
The legislative provisions relating to the contributions of the spouses to the cost of the household shall apply to the monetary proceeds referred to in the second paragraph of this Article.
The right of exploitation belonging to the author shall comprise the right of performance and the right of reproduction.
Performance shall consist in the communication of the work to the public by any process whatsoever, particularly:
- 1° Public recitation, lyrical performance, dramatic performance, public presentation, public projection and transmission in a public place of a telediffused work;
Transmission of a work towards a satellite shall be assimilated to a performance.
Reproduction shall consist in the physical fixation of a work by any process permitting it to be communicated to the public in an indirect way.
It may be carried out, in particular, by printing, drawing, engraving, photography, casting and all processes of the graphical and plastic arts, mechanical, cinematographic or magnetic recording.
In the case of works of architecture, reproduction shall also consist in the repeated execution of a plan or of a standard project.
Any complete or partial performance or reproduction made without the consent of the author or of his successors in title or assigns shall be unlawful. The same shall apply to translation, adaptation or transformation, arrangement or reproduction by any technique or process whatsoever.
Once a work has been disclosed, the author may not prohibit:
- 1° Private and gratuitous performances carried out exclusively within the family circle;
2° Copies or reproductions reserved strictly for the private use of the copier and not intended for collective use, with the exception of copies of works of art to be used for purposes identical with those for which the original work was created and copies of software other than backup copies made in accordance with paragraph II of Article L. 122-6-1;
3° On condition that the name of the author and the source are clearly stated:
(a) Analyses and short quotations justified by the critical, polemic, educational, scientific or informatory nature of the work in which they are incorporated;
(b) Press reviews;
(c) Dissemination, even in their entirety, through the press or by telediffusion, as current news, of speeches intended for the public made in political, administrative, judicial or academic gatherings, as also in public meetings of a political nature and at official ceremonies;
4° Parody, pastiche and caricature, observing the rules of the genre.
Subject to the provisions of Article L. 122-6-1, the exploitation right belonging to the author of the software shall include the right to do or to authorize:
- 1° The permanent or temporary reproduction of software by any means and in any form, in part or in whole. Insofar as loading, displaying, running, transmission or storage of the software necessitate such reproduction, such acts shall be possible only with the authorization of the author;
2° The translation, adaptation, arrangement or any other alteration of software and the reproduction of the results thereof;
3° The placing on the market for consideration or gratuitously, including rental, of the software or of copies thereof by any process. However, the first sale of a copy of software on the territory of a Member State of the European Community or of a State party to the agreement on the European Economic Area by the author or with his consent shall exhaust the right of placing on the market of that copy in all Member States, with the exception of the right to authorize further rental of a copy.
I. The acts referred to in items 1°and 2° of Article L. 122-6 shall not require authorization by the author where they are necessary for the use of the software by the person entitled to use it in accordance with its intended purpose, including for error correction.
However, an author may by contract reserve the right to correct errors and stipulate any special conditions to which shall be subject the acts referred to in items 1°and 2° of Article L. 122-6, necessary to enable the entitled person to use the software in accordance with its intended purpose.
II. A person having the right to use the software may make a backup copy where such is necessary to ensure use of the software.
III. A person having the right to use the software shall be entitled, without the authorization of the author, to observe, study or test the functioning of the software in order to determine the ideas and principles which underlie any element of the software if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the software which he is entitled to do.
IV. Reproduction of the code of the software or translation of the form of that code shall not require the authorization of the author where reproduction or translation within the meaning of item 1° or 2° of Article L. 122-6 is indispensable for obtaining the information necessary to achieve the interoperability of independently created software with other software, providing that the following conditions are met:
- 1° These acts are performed by a person entitled to use a copy of the software or on his behalf by a person authorized to do so;
2° The information necessary to achieve interoperability has not previously been readily available to the persons referred to in item 1° above;
3° And these acts are confined to the parts of the original software which are necessary to achieve interoperability.
- 1° Be used for goals other than to achieve the interoperability of the independently created software;
2° Be given to others, except where necessary for the interoperability of the independently created software;
3° Or be used for the development, production or marketing of software substantially similar in its expression, or for any other act which infringes copyright.
Any stipulation contrary to the provisions of paragraphs II, III and IV of this Article shall be null and void.
Any publication or user’s handbook concerning means of removing or circumventing any technical device protecting software shall state that the unlawful use of such means is liable to the penalties laid down for cases of infringement.
A Decree in Council of State shall lay down the implementing rules for this Article.
The right of performance and the right of reproduction may be transferred, for or without payment.
Transfer of the right of performance shall not imply transfer of the right of reproduction.
Transfer of the right of reproduction shall not imply transfer of the right of performance.
Where a contract contains the complete transfer of either of the rights referred to in this Article, its effect shall be limited to the exploitation modes specified in the contract.
Authors of graphic and three-dimensional works shall have an inalienable right, regardless of any transfer of the original work, to participate in the proceeds of any sale of such work by public auction or through a dealer.
The royalty levied shall be a uniform 3% applicable only on a selling price above an amount to be laid down by regulation.
The royalty shall be levied on the selling price of each work and on the full price with no deduction from the basis. A Decree in Council of State (Conseil d’Etat) shall lay down the conditions under which authors may assert the rights afforded them by this Article with respect to the sales referred to in the first paragraph above.
In the event of manifest abuse in the exercise or non-exercise of the rights of exploitation by the deceased author’s representatives referred to in Article L. 121-2, the first instance court may order any appropriate measure. The same shall apply in the event of a dispute between such representatives, if there is no known successor in title, no heir or no spouse entitled to inherit.
Such matters may be referred to the courts, inter alia, by the Minister responsible for culture.
The publication of a work shall imply assignment of the right of reprographic reproduction to a society governed by Title II of Book III and approved to such end by the Minister responsible for culture. Only approved societies may conclude an agreement with users for the purpose of administering the right thus assigned, subject, for the stipulations authorizing copies for the purposes of sale, rental, publicity or promotion, to the agreement of the author or his successors in title. Failing such designation by the author or his successor in title on the date of publication of the work, one of the approved societies shall be deemed the assignee of the right.
Reprography shall mean reproduction in the form of a copy on paper or an assimilated medium by means of a photographic process or one having equivalent effect permitting direct reading.
The provisions of the first paragraph shall not affect the right of the author or his successors in title to make copies for the purposes of sale, rental, publicity or promotion.
Notwithstanding any stipulation to the contrary, the provisions of this Article shall apply to all protected works whatever the date of their publication.
The agreements referred to in Article L. 122-10 may provide for lump sum remuneration in the cases defined in items 1°to 3° of Article L. 131-4.
Approval of the societies referred to in the first paragraph of Article L. 122-10 shall be given on consideration of:
- - the diversity of the partners;
- the professional qualifications of the officers;
- the human and material means they propose to use to administer the reprographic reproduction right;
- the equitable nature of the conditions foreseen for distributing the amounts collected.
Term of Protection
The author shall enjoy, during his lifetime, the exclusive right to exploit his work in any form whatsoever and to derive monetary profit therefrom.
On the death of the author, the right shall subsist for his successors in title during the current calendar year and for 50 years thereafter. However, for musical compositions with or without words the term shall be of 70 years.
In the case of works of collaboration, the calendar year taken into account shall be that of the death of the last surviving joint author.
In the case of pseudonymous or collective works, the term of the exclusive right shall be 50 years as from January 1 of the calendar year following that of publication. However, for musical compositions with or without words, the term shall be 70 years. The date of publication shall be determined by any means of proof under the general rules of law, particularly by statutory deposit.
Where a collective work is published by installments, the term shall run from January 1 of the calendar year following publication of each installment. However, if publication is completed within 20 years of publication of the first installment, the term of the exclusive right in the work as a whole shall end only on expiry of the fiftieth year following that of publication of the last installment.
In the case of anonymous or pseudonymous works, if the author or authors have revealed their identity, the term of the right of exploitation shall be that applicable to the category of work concerned and the term of statutory protection shall begin as set out in Article L. 123-1.
In the case of posthumous works, the term of the exclusive right shall be 50 years as from the date of publication of the work; however, for musical compositions with or without words, the term shall be 70 years.
The right of exploitation in posthumous works shall belong to the author’s successors in title if the work is disclosed during the term referred to in Article L. 123-1.
If disclosure is made on expiry of that term, the right shall belong to the owners of the work, whether by succession or for other reason, who publish or have the work published.
Posthumous works shall be published separately, except where they constitute only a fragment of a work previously published. They may only be joined with previously published works of the same author if the author’s successors in title still enjoy the exploitation rights therein.
During the term laid down in Article L. 123-1, the surviving spouse, against whom there is no final decision of separation, shall enjoy the usufruct of any right of exploitation that the author has not assigned, irrespective of the type of marriage arrangements and of the rights of usufruct deriving from Article 767 of the Civil Code with respect to other assets of the estate. However, if the author has left forced heirs, the usufruct shall be reduced to the benefit of the heirs, according to the proportions and distinctions laid down by Articles 913 et seq. of the Civil Code.
Such right shall lapse should the spouse contract a new marriage.
After the death of the author, the resale royalty right referred to in Article L. 122-8 shall subsist to the benefit of the heirs and, with respect to usufruct laid down in Article L. 123-6, of the spouse, to the exclusion of all legatees and successors in title, for the current calendar year and 50 years thereafter.
The rights afforded by the Law of July 14, 1866, on the Rights of Heirs and Successors in Title of Authors to the heirs and other successors in title of authors, composers or artists shall be extended for a period equal to that which elapsed between August 2, 1914, and the end of the year following the day of signature of the peace treaty for all works published prior to that latter date and which had not fallen into the public domain on February 3, 1919.
The rights afforded by the above-mentioned Law of July 14, 1866, and by Article L. 123-8 to the heirs and successors in title of the authors, composers and artists shall be extended for a period equal to that which elapsed between September 3, 1939, and January 1, 1948, for all works published before that date and which did not fall into the public domain on August 13, 1941.
The rights referred to in the preceding Article shall be further extended for a term of 30 years if the author, the composer or the artist has died for France, as recorded in the death certificate.
Where the death certificate has neither to be drawn up nor registered in France, the Minister responsible for culture may extend by order to the heirs or other successors in title of the deceased person the benefit of the additional extension of 30 years; such order, issued after obtaining the opinion of the authorities referred to in Article 1 of Ordinance No. 45-2717 of November 2, 1945, may only be issued in those cases where the entry "died for France" would have appeared on the death certificate if such certificate had been drawn up in France.
Where the rights extended under Article L. 123-10 have been assigned for consideration, the assignors or their successors in title may apply, within a period of three years as from September 25, 1951, to the assignee or his successors in title for a review of the conditions of the assignment as compensation for the advantages resulting from the extension.
EXPLOITATION OF RIGHTS
Total transfer of future works shall be null and void.
The performance, publishing and audiovisual production contracts defined in this Title shall be in writing. The same shall apply to free performance authorizations.
In all other cases, the provisions of Articles 1341 to 1348 of the Civil Code shall apply.
Transfer of authors’ rights shall be subject to each of the assigned rights being separately mentioned in the instrument of assignment and the field of exploitation of the assigned rights being defined as to its scope and purpose, as to place and as to duration.
Where special circumstances demand, the contract may be validly concluded by an exchange of telegrams, on condition that the field of exploitation of the assigned rights be defined in compliance with the first paragraph of this Article.
Assignment of audiovisual adaptation rights must be effected by written contract in an instrument separate from the contract relating to publication itself of the printed work.
The assignee shall undertake by such contract to endeavor to exploit the assigned right in accordance with trade practice and to pay to the author, in the event of adaptation, a remuneration that is proportional to the revenue obtained.
Assignment by the author of the rights in his work may be total or partial. Assignment shall comprise a proportional participation by the author in the revenue from sale or exploitation of the work.
However, the author’s remuneration may be calculated as a lump sum in the following cases:
- 1° The basis for calculating the proportional participation cannot be practically determined;
2° The means of supervising the participation are lacking;
3° The cost of the calculation and supervising operations would be out of proportion with the expected results;
4° The nature or conditions of exploitation make application of the rule of proportional remuneration impossible, either because the author’s contribution does not constitute one of the essential elements of the intellectual creation of the work or because the use of the work is only of an accessory nature in relation to the subject matter exploited;
5° Assignment of rights in software;
6° In the other cases laid down in this Code.
If the exploitation right has been assigned and the author suffers a prejudice of more than seven-twelfths as a result of a burdensome contract or of insufficient advance estimate of the proceeds from the work, he may demand review of the price conditions under the contract.
Such demand may only be formulated where the work has been assigned against lump sum remuneration.
The burdensome contract shall be assessed taking into account the overall exploitation by the assignee of the works of the author who claims to have suffered a prejudice.
Any assignment clause affording the right to exploit a work in a form that is enforceable and not foreseen on the date of the contract shall be explicit and shall stipulate participation correlated to the profits from exploitation.
In the event of partial assignment, the assignee shall replace the author in the exercise of the assigned rights subject to the conditions and limitations and for the duration laid down in the contract, and with the obligation to render accounts.
With regard to payment of the royalties and remuneration due to them for the last three years for the assignment, exploitation or use of their works, as defined in Article L. 112-2 of this Code, the authors, composers and artists shall enjoy the privilege set out in item 4° of Article 2101 and in Article 2104 of the Civil Code.
Special Provisions for Certain Contracts
A publishing contract is a contract by which the author of a work of the mind or his successors in title assign under specified conditions to a person referred to as the publisher the right to manufacture or have manufactured a number of copies of the work, it being for the latter to ensure publication and dissemination thereof.
A contract at the author’s expense shall not constitute a publishing contract within the meaning of Article L. 132-1.
Under such contract, the author or his successors in title pay to the publisher an agreed remuneration against which the latter manufactures a number of copies of the work in the form and according to the modes of expression specified in the contract and ensures their publication and dissemination.
Such contract constitutes a contract for hire governed by convention, usage and the provisions of Articles 1787 et seq. of the Civil Code.
A contract at joint expense shall not constitute a publishing contract within the meaning of Article L. 132-1.
Under such contract, the author or his successors in title commission a publisher to manufacture at his expense a number of copies of the work in the form and according to the modes of expression specified in the contract and to ensure their publication and dissemination in accordance with the agreement reciprocally contracted to share profits and losses of exploitation in the agreed proportion.
Such contract shall constitute a joint undertaking. It shall be governed, subject to the provisions of Articles 1871 et seq. of the Civil Code, by convention and usage.
A clause by which the author undertakes to afford a right of preference to a publisher for the publication of his future works of clearly specified kinds shall be lawful.
Such right shall be limited, for each kind of work, to five new works as from the day of signature of the publishing contract concluded for the first work or to works produced by the author within a period of five years from that same date.
The publisher shall exercise the right afforded him by notifying the author in writing of his decision within three months of the date on which the author has delivered to him each final manuscript.
If the publisher enjoying the right of preference successively refuses two new works submitted by the author of the kind laid down in the contract, the author may immediately and automatically recover his liberty with respect to any future works he produces of that kind. However, if he has received advances from the first publisher against his future works, he must first refund such advances.
The contract may lay down either remuneration proportional to the proceeds of exploitation or, in the cases referred to in Articles L. 131-4 and L. 132-6, a lump sum remuneration.
In the case of trade editions, the author’s remuneration for the first edition may also be in the form of a lump sum, subject to the formally expressed agreement of the author, in the following cases:
- 1° Scientific and technical works;
2° Anthologies and encyclopedias;
3° Prefaces, annotations, introductions, forewords;
4° Illustrations for a work;
5° Limited deluxe editions;
6° Prayer books;
7° At the request of the translator, in the case of translations;
8° Inexpensive popular editions;
9° Inexpensive picture books for children.
In the case of works of the mind published in newspapers and periodicals of any kind and by press agencies, the remuneration of an author bound to the information enterprise by a contract for hire or of service may also be laid down as a lump sum.
The personal consent of the author given in writing shall be obligatory.
Notwithstanding the provisions that govern contracts made by minors and adults under guardianship, consent shall be required even in the case of a legally incompetent author, unless he is physically unable to give his consent.
The provisions of the preceding paragraph shall not apply if the publishing contract is signed by the author’s successors in title.
The author shall guarantee the publisher the undisturbed and, unless otherwise agreed, exclusive exercise of the right assigned.
He shall be required to ensure respect for the right and to defend it against any possible violation.
The author shall put the publisher in a position to manufacture and disseminate copies of the work.
He shall deliver to the publisher, within the period of time stipulated in the contract, the subject matter of publication in a form permitting normal manufacture.
The subject matter of publication furnished by the author shall remain the property of the author unless otherwise agreed or technically impossible. The publisher shall remain responsible for the subject matter of publication for a period of one year after completion of manufacture.
The publishing contract must state the minimum number of copies that constitute the first printing.
However, this obligation shall not apply to contracts laid down at minimum royalties guaranteed by the publisher.
The publisher shall be required to manufacture the work or have it manufactured under the conditions, in the form and according to the modes of expression laid down in the contract.
He may not make any modification to the work without the written authorization of the author.
Unless otherwise agreed, he shall place on each of the copies the name, pseudonym or symbol of the author.
Unless there is a special agreement, the publisher shall complete the publication within the term customary in the trade.
In the case of a contract of fixed duration, the rights of the assignee shall lapse automatically on expiry of that term without need of any formal notice.
However, for three years after expiry of that term, the publisher may continue to market at the normal price the copies remaining in stock, unless the author prefers to buy the copies at a price which, in the absence of an amicable agreement, shall be fixed according to expert opinion, whereby this faculty afforded the first publisher shall not prevent the author from proceeding with a new edition within a period of 30 months.
The publisher shall be required to ensure continuous and sustained exploitation and commercial dissemination of the work in accordance with the practices of the trade.
The publisher shall be required to render accounts.
In the absence of special conditions stipulated in the contract, the author may require the publisher to produce, at least once a year, a statement of the number of copies manufactured during the period in question and specifying the date and size of the printings and the number of copies in stock.
In the absence of contrary usage or agreement, the statement shall also contain the number of copies sold by the publisher, the number of copies that cannot be used or have been destroyed by accident or due to unavoidable circumstances and the amount of royalties due or paid to the author.
The publisher shall be required to furnish the author with all evidence required to establish the accuracy of his accounts.
If the publisher fails to provide the necessary evidence, he shall be obliged to do so by the court.
Judicial rehabilitation of the publisher shall not terminate the contract. Where activities are continued in application of Articles 31 et seq. of Law No. 85-98 of January 25, 1985, on the Judicial Rehabilitation and
Liquidation of Enterprises, all of the publisher’s obligations with regard to the author shall be respected.
Where the publishing enterprise is sold in application of Articles 81 et seq. of the above- mentioned Law No. 85-98 of January 25, 1985, the purchaser shall be held to the obligations of the seller.
Where the activities of the enterprise have ceased more than three months earlier or where judicial liquidation is pronounced, the author may request termination of the contract.
The liquidator may not sell at reduced price or sell out the manufactured copies in accordance with Articles 155 and 156 of Law No. 85-98 of January 25, 1985, referred to above, until at least 15 days after having notified the author of his intention by means of a registered letter with acknowledgment of receipt.
The author shall have a right of preemption on all or part of the copies. Failing agreement, the price shall be fixed by expert opinion.
The publisher may not transmit the benefits of the publishing contract to a third party, for or without payment, or as a contribution to the assets of a partnership, independently of the business, without first having obtained the authorization of the author.
In the event of transfer of the business in such a way as to seriously compromise the material and moral interests of the author, the latter shall be entitled to obtain reparation even by means of termination of the contract.
Where the publishing business was run as a company or a coparcenary, the allocation of the business to one of the former partners or one of the coparceners, as a consequence of liquidation or division, shall in no case be considered a transfer.
The publishing contract shall end, independently of the cases laid down in the general rules of law or in the preceding Articles, when the publisher carries out the complete destruction of the copies.
The contract shall terminate automatically if, upon formal notice by the author fixing a reasonable period of time, the publisher has not effected publication of the work or, should the work be out of print, its republication.
The work shall be deemed out of print if two orders for delivery of copies addressed to the publisher have not been met within three months.
If, in the event of the author’s death, the work is incomplete, the contract shall be rescinded as regards the unfinished part of the work, except as otherwise agreed between the publisher and the author’s successors in title.
A performance contract is a contract under which the author of a work of the mind or his successors in title authorize a natural or legal person to perform such a work under the conditions they stipulate. A general performance contract means a contract under which a professional body of authors grants to an entertainment promoter the right to perform, for the duration of the contract, the existing or future works constituting the repertoire of such body under the conditions stipulated by the author or his successors in title.
In the case referred to in the preceding paragraph, the requirements of Article L. 131-1 may be waived.
A performance contract shall be concluded for a limited duration or for a specific number of communications to the public.
Unless exclusive rights are expressly stipulated, it shall not afford the entertainment promoter an exploitation monopoly.
The validity of the exclusive rights afforded by a playwright may not exceed five years; the interruption of performances for two consecutive years shall automatically terminate the contract.
An entertainment promoter may not transfer the benefit of his contract without formal consent given in writing by the author or his representative.
Unless otherwise agreed:
- 1° Authorization to telediffuse a work by electromagnetic waves shall not include cable distribution of such telediffusion, unless made simultaneously and integrally by the organization holding the authorization and without extension of the contractually stipulated geographical area;
2° Authorization to telediffuse the work shall not constitute an authorization to communicate the telediffusion of the work in a place to which the public has access;
3° Authorization to telediffuse the work by electromagnetic waves shall not include its transmission towards a satellite enabling the work to be received by the intermediary of other organizations unless the authors or their successors in title have contractually authorized the latter organizations to communicate the work to the public; in such case, the emitting organization shall be exempted from paying any remuneration.
An entertainment promoter shall be required to notify to the author or his representatives the exact program of public performances and to supply to them a documented statement of receipts. He shall pay into the hands of the author or his representatives at the agreed times the amount of the stipulated royalties.
However, when municipalities organize local and public celebrations and when societies for popular education, recognized by the administrative authorities, organize gatherings within the scope of their activities, they shall enjoy a reduction in those royalties.
An entertainment promoter shall ensure that public performance takes place under technical conditions that guarantee respect for the author’s intellectual and moral rights.
Audiovisual Production Contracts
The natural or legal person who takes the initiative and responsibility for making the work shall be deemed the producer of an audiovisual work.
Contracts binding the producer and the authors of an audiovisual work, other than the author of a musical composition with or without words, shall imply, unless otherwise stipulated and notwithstanding the rights afforded to the author by Articles L. 111-3, L. 121-4, L. 121-5, L. 122-1 to L. 122-7, L. 123-7, L. 131-2 to L. 131-7, L. 132-4 and L. 132-7, assignment to the producer of the exclusive exploitation rights in the audiovisual work.
Audiovisual production contracts shall not imply assignment to the producer of the graphic rights and theatrical rights in the work.
Contracts shall lay down the list of those elements that have served to make the work that are to be conserved as also the conditions of conservation.
Remuneration shall be due to the authors for each exploitation mode.
Subject to Article L. 131-4, where the public pays a price to receive communication of a given, individually identifiable audiovisual work, remuneration shall be proportional to such price, subject to any decreasing tariffs afforded by the distributor to the operator; the remuneration shall be paid to the authors by the producer.
The author shall guarantee to the producer the undisturbed exercise of the rights assigned.
The producer shall be required to exploit the audiovisual work in conformity with the practice of the trade.
The producer shall furnish at least once a year to the author and the joint authors a statement of revenue from exploitation of the work in respect of each exploitation mode.
At their request, he shall furnish to them all evidence necessary to establish the accuracy of the accounts, in particular copies of the contracts in which he assigns to third parties all or a part of the rights he enjoys.
Unless agreed otherwise, each of the authors of an audiovisual work may freely dispose of the part of the work that constitutes his personal contribution, for the purpose of exploiting it in a different field, within the limits laid down in Article L. 113-3.
Judicial rehabilitation of the producer shall not imply termination of the audiovisual production contract.
Where the making or exploitation of the work is continued under Articles 31 et seq. of Law No. 85-98 of January 25, 1985, on the Judicial Rehabilitation and Liquidation of Enterprises, the receiver shall be required to respect all of the producer’s commitments, particularly as regards the joint authors.
In the event of sale of all or a part of the enterprise or of liquidation, the receiver, the debtor or the liquidator, as appropriate, shall be required to establish a separate lot for each audiovisual work that may be subject to assignment or to auction. He shall be required to inform, on pain of nullity, each of the authors and co-producers of the work by registered letter one month before any decision on assignment or any procedure for sale by auction of property held indivisum. The acquirer shall similarly be held to the obligations of the seller.
The author and the joint authors shall have a right of preemption in respect of the work unless one of the co-producers states his intention to acquire. Failing agreement, the purchase price shall be fixed by expert opinion.
Where the activities of the enterprise have ceased for more than three months or where liquidation is ordered, the author and the joint authors may require termination of the audiovisual production contract.
Commission Contracts for Advertising
In the case of a commissioned work used for advertising, the contract between the producer and the author shall imply, unless otherwise stipulated, assignment to the producer of the exploitation rights in the work on condition that the contract specify the separate remuneration payable for each mode of exploitation of the work as a function, in particular, of the geographical area, the duration of exploitation, the size of the printing and the nature of the medium.
An agreement between the organizations representing the authors and the organizations representing the advertising producers shall lay down the basic elements used to form the remuneration that corresponds to the various uses of works.
The term of the agreement shall be of between one and five years.
Its provisions may be made compulsory for all the parties by way of decree.
Failing agreement concluded either prior to April 4, 1986, or on the date of expiry of the preceding agreement, the bases for the remuneration referred to in the second paragraph of Article L. 132-31 shall be determined by a committee chaired by a magistrate of the judiciary designated by the First President of the Court of Causation, and composed, in addition, of one member of the Council of State designated by the Vice-President of the Council of State, one qualified person designated by the Minister responsible for culture, on the one hand, and an equal number of members designated by the organizations representing the authors and of members designated by the organizations representing the advertising producers, on the other.
The organizations entitled to designate members of the Committee and the number of persons each organization shall be entitled to designate shall be specified by an order of the Minister responsible for culture.
The Committee shall take its decisions on a majority of the members present. In the event of an equally divided vote, the Chairman shall have a casting vote.
The Committee’s decisions shall be enforceable if, within one month, its Chairman has not requested a second decision.
The decisions of the Committee shall be published in the Official Journal of the French Republic.
Pledging the Right to Exploit Software
Notwithstanding the provisions of the Law of March 17, 1909, on the Sale and Mortgaging of Businesses, the right of exploitation of an author of software, as defined in Article L. 122-6, may be pledged subject to the following conditions:
The pledge shall be set out in writing on pain of nullity.
The pledge shall be entered, failing which it shall not be invokable, in a special register kept by the National Institute of Industrial Property. The entry shall state precisely the basis for the security and, particularly, the source codes and operating documents.
The ranking of entries shall be determined by the order in which they are requested.
The entries of pledges shall lapse, unless renewed beforehand, on expiry of a period of five years.
A Decree in Council of State shall lay down the implementing conditions for this Article.
INTELLECTUAL PROPERTY CODE
Literary and Artistic Property
Neighboring rights shall not prejudice authors’ rights. Consequently, no provision in this Title shall be interpreted in such a way as to limit the exercise of copyright by its owners.
In addition to any person having a justified interest, the Minister responsible for culture shall be entitled to take legal action, particularly where there is no known successor in title or where there is no heir or no spouse entitled to inherit.
The beneficiaries of the rights afforded by this Title may not prohibit:
- 1° Private and gratuitous performances carried out exclusively within the family circle;
2° Reproductions strictly reserved for private use by the person who has made them and not intended for any collective use;
3° Subject to adequate elements of identification of the source:
- Analyses and brief quotations justified by the critical, polemic, educational, scientific or informatory nature of the work in which they are incorporated;
- Press reviews;
- Dissemination, even in full, for the purposes of current affairs information, of speeches intended for the public in political, administrative, judicial or academic assemblies and in public meetings of a political nature and in official ceremonies;
4° Parody, pastiche and caricature, observing the rules of the genre.
The duration of the economic rights under this Title shall be 50 years as from January 1 of the calendar year following that of first communication to the public, of performance of the work, of its production or of the programs referred to in Article L. 216-1.
Rights of Performers
Save for ancillary performers, considered such by professional practice, performers shall be those persons who act, sing, deliver, declaim, play in or otherwise perform literary or artistic works, variety, circus or puppet acts.
A performer shall have the right to respect for his name, his capacity and his performance.
This inalienable and imprescriptible right shall attach to his person.
It may be transmitted to his heirs in order to protect his performance and his memory after his death.
The performer’s written authorization shall be required for fixation of his performance, its reproduction and communication to the public as also for any separate use of the sounds or images of his performance where both the sounds and images have been fixed.
Such authorization and the remuneration resulting therefrom shall be governed by Articles L. 762-1 and L. 762-2 of the Labor Code, subject to Article L. 212-6 of this Code.
The signature of a contract between the performer and a producer for the making of an audiovisual work shall imply the authorization to fix, reproduce and communicate to the public the performance of the performer.
Such contract shall lay down separate remuneration for each mode of exploitation of the work.
Where neither a contract nor a collective agreement mention the remuneration for one or more modes of exploitation, the amount of such remuneration shall be determined by reference to the schedules established under specific agreements concluded, in each sector of activity, between the employees’ and employers’ organizations representing the profession.
Article L. 762-2 of the Labor Code shall only apply to that part of the remuneration paid in accordance with the contract that exceeds the bases laid down in the collective agreement or specific agreement.
Contracts concluded prior to January 1, 1986, between a performer and a producer of audiovisual works or their assignees shall be subject to the preceding provisions in respect of those modes of exploitation which they excluded. The corresponding remuneration shall not constitute a salary. This right of remuneration shall lapse at the death of the performer.
The provisions of the agreements referred to in the preceding Articles may be made compulsory within each sector of activity for all the parties concerned by order of the responsible Minister.
Failing agreement concluded in accordance with Articles L. 212-4 to L. 212-7, either prior to January 4, 1986, or at the date of expiry of the preceding agreement, the types and bases of remuneration for the performers shall be determined, for each sector of activity, by a committee chaired by a magistrate of the judiciary designated by the First President of the Court of Causation and composed, in addition, of one member of the Council of State designated by the Vice-President of the Council of State, one qualified person designated by the Minister responsible for culture and an equal number of representatives of the employees’ organizations and representatives of the employers’ organizations.
The Committee shall take its decisions on a majority of the members present. In the event of equally divided voting, the Chairman shall have a casting vote. The Committee shall decide within three months of the expiry of the time limit laid down in the first paragraph of this Article.
Its decision shall have effect for a duration of three years, unless the parties concerned reach an agreement prior to that date.
Performers may not prohibit the reproduction and public communication of their performance if it is accessory to an event that constitutes the main subject of a sequence within a work or an audiovisual document.
Rights of Phonogram Producers
The natural or legal person who takes the initiative and responsibility for the initial fixation of a sequence of sounds shall be deemed the phonogram producer.
The authorization of the phonogram producer shall be required prior to any reproduction, making available to the public by way of sale, exchange or rental, or communication to the public of his phonogram, other than those referred to in Article L. 214-1.
Provisions Common to Performers and Phonogram Producers
Where a phonogram has been published for commercial purposes, neither the performer nor the producer may oppose:
- 1° Its direct communication in a public place where it is not used in an entertainment;
2° Its broadcasting or the simultaneous and integral cable distribution of such broadcast.
Such remuneration shall be paid by the persons who use the phonograms published for commercial purposes under the conditions set out in items 1°and 2°of this Article.
It shall be based on the revenue from exploitation or, failing that, calculated as a lump sum in the cases laid down in Article L. 131-4.
It shall be shared half each between the performers and the phonogram producers.
Subject to the international conventions, the right to remuneration afforded by Article L. 214-1 shall be shared between the performers and phonogram producers for phonograms fixed for the first time in France.
The schedule of remuneration and the conditions of payment of the remuneration shall be laid down by specific agreements for each branch of activity between the organizations representing the performers, the phonogram producers and the persons using phonograms as laid down in items 1°and 2° of Article L. 214-1.
Such agreements shall set out the terms under which the persons using phonograms under such conditions shall satisfy their obligation to furnish to the royalty collection and distribution societies the precise program of the uses which they make and all the documentary elements that are indispensable for distributing the royalties.
The provisions of such agreements may be made compulsory for all the parties concerned by order of the Minister responsible for culture.
The term of such agreements shall be of between one and five years.
Failing agreement prior to June 30, 1986, or if no agreement has been reached on expiry of the preceding agreement, the schedule of remuneration and the conditions for paying the remuneration shall be decided by a Committee chaired by a magistrate of the judiciary designated by the First President of the Court of Causation and composed, in addition, of one member of the Council of State designated by the Vice-President of the Council of State, of one qualified person designated by the Minister responsible for culture and of an equal number of members designated by the organizations representing the beneficiaries of the right to remuneration and of members designated by the organizations representing those persons who, in the branch of activity concerned, use the phonograms in accordance with the conditions laid down in items 1°and 2° of Article L. 214-1.
The organizations entitled to designate members of the Committee and the number of persons each organization shall be entitled to designate shall be laid down by an order of the Minister responsible for culture.
The Committee shall take its decisions on a majority of the members present. In the event of equally divided voting, the Chairman shall have a casting vote.
The decisions of the Committee shall be enforceable if, within a period of one month, its Chairman has not requested a second decision.
The decisions of the Committee shall be published in the Official Journal of the French Republic.
The remuneration referred to in Article L. 214-1 shall be collected on behalf of the entitled persons and distributed among them by one or more bodies as referred to in Title II of Book III.
Rights of Videogram Producers
The natural or legal person who takes the initiative and the responsibility for the initial fixation of a sequence of images, whether accompanied by sounds or not, shall be deemed the videogram producer.
The authorization of the videogram producer shall be required prior to any reproduction, any making available to the public by means of sale, exchange or rental, or any communication to the public of his videogram.
The rights afforded to a videogram producer under the preceding paragraph, the authors’ rights and the performers’ rights of which he disposes in respect of the work fixed on the videogram may not be separately assigned.
Rights of Audiovisual Communication Enterprises
The authorization of the audiovisual communication enterprise shall be required for any reproduction of its programs, any making them available to the public by sale, rental or exchange, any telediffusion and communication to the public in a place to which the latter has access in exchange for the payment of an entry fee.
Those bodies that exploit an audiovisual communication service within the meaning of Law No. 86-1067 of September 30, 1986, on the Freedom of Communication, whatever the arrangements applicable to that service, shall be designated audiovisual communication enterprises.
INTELLECTUAL PROPERTY CODE
Literary and Artistic Property
REMUNERATION FOR PRIVATE COPYING
The authors and performers of works fixed on phonograms or videograms and the producers of such phonograms or videograms shall be entitled to remuneration for the reproduction of those works made in accordance with item 2° of Article L. 122-5 and item 2° of Article L. 211-3.
Subject to the international conventions, the right to remuneration referred to in Articles L. 214-1 and L. 311-1 shall be shared between the authors, performers, phonogram or videogram producers in respect of phonograms and videograms fixed for the first time in France.
The remuneration for private copying shall be assessed, under the conditions defined below, as a lump sum as laid down in the second paragraph of Article L. 131-4.
The remuneration laid down in Article L. 311-3 shall be paid by the manufacturer or importer of recording mediums that may be used for reproduction for private use of works fixed on phonograms or videograms, at the time these mediums enter into circulation in France.
The amount of the remuneration shall depend on the type of medium and the recording time it provides.
The types of medium, the rates of remuneration and the conditions of payment of such remuneration shall be determined by a Committee chaired by a representative of the State and composed, in addition, in half of persons designated by organizations representing the beneficiaries of the right of remuneration, in quarter of persons designated by the organizations representing the manufacturers or importers of the mediums referred to in the first paragraph of the preceding Article and in quarter of persons designated by the organizations representing the consumers.
The organizations entitled to designate members of the Committee and the number of persons that each organization shall be entitled to designate shall be determined by an order of the Minister responsible for culture.
The Committee shall take its decisions on a majority of the members present. In the event of equally divided voting, the Chairman shall have a casting vote.
The decisions of the Committee shall be enforceable if, within one month, its Chairman has not requested a second decision.
The decisions of the Committee shall be published in the Official Journal of the French Republic.
The remuneration referred to in Article L. 311-1 shall be collected on behalf of the entitled persons by one or more bodies as referred to in Title II of this Book.
It shall be distributed between the entitled persons by the bodies referred to in the preceding paragraph as a function of the private reproductions of which each work has been the subject.
The remuneration for private copying of phonograms shall belong in half to the authors within the meaning of this Code, in quarter to the performers and in quarter to the producers.
The remuneration for private copying of videograms shall belong in equal parts to the authors within the meaning of this Code, the performers and the producers.
The remuneration for private copying shall be refunded when the recording medium is acquired for their own use or production by:
- 1° Audiovisual communication enterprises;
2° Phonogram or videogram producers and persons who carry out the reproduction of phonograms or videograms on behalf of the producers;
3° Legal persons or bodies, of which the list shall be established by the Minister responsible for culture, that use recording mediums for the purpose of assisting persons with sight or hearing disability.
ROYALTY COLLECTION AND DISTRIBUTION SOCIETIES
The societies for the collection and distribution of authors’ royalties and the royalties of performers and phonogram and videogram producers shall be established in the form of civil law companies.
The members must be authors, performers, phonogram or videogram producers, publishers or their successors in title. Such duly established civil law societies shall be entitled to take legal action to defend the rights for which they are responsible under their statutes.
Contracts concluded by the civil law societies of authors or of owners of neighboring rights, in implementation of their purpose, with the users of all or part of their repertoire shall constitute civil law instruments.
The draft statutes and general regulations of the royalty collection and distribution societies shall be addressed to the Minister responsible for culture.
Within one month of receipt, the Minister may apply to the first instance court in the event of substantial and earnest reasons opposing the incorporation of a society.
The court shall assess the professional qualifications of the founders of such society, the human and material means that they intend to use to collect royalties and to exploit their repertoire.
The royalty collection and distribution societies shall be required to appoint at least one auditor and one alternate from the list referred to in Article 219 of Law No. 66-537 of July 24, 1966, on Commercial Companies, who shall carry out their duties in compliance with the provisions laid down in the above-mentioned Law, subject to the rules specific to them. Article 457 of the above-mentioned Law No. 66-537 of July 24, 1966, shall be of application.
Article 29 of Law No. 84-148 of March 1, 1984, on the Prevention and Amicable Settlement of Difficulties in Enterprises shall be of application.
Any member shall be entitled, subject to the conditions and time limits set out by decree, to obtain communication:
- 1° Of the annual statement of accounts and the list of administrators;
2° Of the reports of the administrative council and of the auditors, that are to be submitted to the general meeting;
3° Where appropriate, the text and motivation of resolutions submitted and information concerning candidates for the administrative council;
4° The overall amount, certified by the auditors, of the remuneration paid to the most highly remunerated persons, whereby the number of such persons shall be 10 or five depending on whether the staff exceeds 200 employees or not.
Any group of members representing at least one-tenth of the membership may take legal action for the designation of one or more experts to be entrusted with submitting a report on one or more administrative operations.
The public prosecutor and the works council shall be entitled to act in the same way.
The report shall be addressed to the requester, to the public prosecutor, to the works council, to the auditors and to the administrative council. The report shall be annexed to the report drawn up by the auditors for the purposes of the first general meeting; it shall be given the same publicity.
The royalty collection and distribution societies shall hold available for potential users the complete repertoire of the French and foreign authors and composers they represent.
The statutes of the royalty collection and distribution societies shall lay down the conditions under which associations of general interest shall enjoy, in respect of events for which no entrance fee is charged, a reduction on the amount of authors’ royalties and of the royalties of performers and phonogram producers which they are required to pay.
These societies shall be required to utilize for activities to promote creation, to promote live entertainment and trainee activities for performers, 50% of the non-distributable amounts collected under Article L. 214-1 above and 25% of the amounts obtained from the remuneration for private copying. The distribution of the corresponding amounts, which shall not be to the benefit of just a single body, shall be subject to a vote at the general meeting of the society taken on a two-thirds majority. Failing such majority, a new general meeting, convened specifically for that purpose, shall take a decision on a simple majority.
Use made of such sums shall be subject, each year, to a special report by the auditors.
The societies that collect and distribute the royalties of phonogram and videogram producers and of performers shall have the faculty, within the limits of the instructions given to them by all or some of the members, or by foreign bodies having the same purpose, to collectively exercise the rights afforded by Articles L. 213-1 and L. 215-1 by concluding general contracts of joint interest with the users of phonograms or videograms for the purpose of improving the dissemination of the latter or of promoting technical or economic progress.
Notwithstanding the general provisions applicable to civil law companies, the request for dissolution of a royalty collection and distribution society may be submitted to the court by the Minister responsible for culture.
In the event of infringement of the law, the court may order a society to cease exercising its collection activities in one sector of activity or for one mode of exploitation.
The royalty collection and distribution society shall communicate its annual statement of accounts to the Minister responsible for culture and shall bring to his notice, two months at least before examination by the general meeting, any draft amendment to the statutes or rules for the collection and distribution of royalties.
It shall address to the Minister responsible for culture, at the latter’s request, any document relating to the collection and distribution of royalties, or copy of agreements concluded with third parties.
The Minister responsible for culture or his representative may obtain, from documents or on the spot, the information referred to in this Article.
PROCEDURE AND SANCTIONS
All disputes relative to the application of the provisions of Part One of this Code which are within the jurisdiction of the civil courts shall be submitted to the competent courts, without prejudice to the right of the injured party to institute criminal proceedings under the general rules of law.
Regularly constituted bodies for professional defense shall be entitled to institute legal proceedings to defend the interests entrusted to them under their statutes.
Apart from the reports drawn up by police investigators, the proof of the existence of any infringement of the provisions of Books I, II and III of this Code and of Article 52 of Law No. 85-660 of July 3, 1985, on Authors’ Rights and on the Rights of Performers, Producers of Phonograms and Videograms and Audiovisual
Communication Enterprises may be provided by the statement of a sworn agent designated, as appropriate, by the National Center for Cinematography, by the professional bodies of authors or by the societies referred to in Title II of this Book. Such agents shall be approved by the Minister responsible for culture subject to the conditions laid down by a decree in Council of State.
The National Center for Cinematography may exercise the rights acknowledged for the civil party with respect to the offense of infringement, within the meaning of Article L. 335-3, of an audiovisual work where the public proceedings have been initiated by the public prosecutor or by the injured party.
Police commissioners and, in those places where there are no police commissioners, the courts shall be required, at the request of an author of a work protected under Book I or his successors in title, to seize copies constituting an unlawful reproduction of the work.
If seizure will have the effect of retarding or suspending public performances which are in progress or which have already been announced, a special authorization must be obtained from the president of the first instance court, by an order issued on demand. The president of the first instance court may also order, in the same form:
- 1° Suspension of all manufacture in progress serving the unlawful reproduction of a work;
2° Seizure, whatever the day or time, of the copies constituting an unlawful reproduction of a work, whether already manufactured or in the process of manufacture, of the receipts obtained and of copies unlawfully used;
3° Seizure of receipts from any reproduction, performance or dissemination, by any means whatsoever, of a work of the mind, carried out in violation of the author’s rights.
Within 30 days of the report of seizure referred to in the first paragraph of Article L. 332-1 or of the date of the order referred to in that same Article, the distrainee or the garnishee may request the president of the first instance court to order the lifting of the seizure or to limit its effect or again to authorize resumption of manufacture or of the public performances, under the authority of an administrator appointed as receiver, to hold the proceeds from such manufacture or performance on behalf of the person to whom the work belongs.
The president of the first instance court, acting in chambers, may order, if he allows the request of the distrainee or garnishee, the petitioner to deposit a sum as a guarantee for any damages to which the author might be entitled.
If the distrainer fails to submit the matter to the competent court within 30 days of seizure, the lifting of the seizure may be ordered by the president of the first instance court, acting in chambers.
In respect of software, infringement seizure shall be carried out under an order issued on request by the president of the first instance court. The president shall authorize distraint where appropriate.
The officiating bailiff or the police commissioner may be assisted by an expert designated by the petitioner.
Failing a writ of summons within 15 days of the seizure, the infringement seizure shall be null and void.
In addition, the police commissioners shall be required, at the request of any author of software protected by this Code or of his successors in title, to carry out a descriptive seizure of the infringing software, whereby such descriptive seizure may take the physical form of a copy.
Where the proceeds of exploitation which are due to the author of a work of the mind have been the subject of a seizure order, the president of the first instance court may order payment to the author, as an allowance for maintenance, of a certain sum or of a specified proportion of the amounts seized.
Amounts due, on account of exploitation for gain or following assignment of literary or artistic property rights, to authors, composers or artists or to a surviving spouse against whom there exists no final decision of separation or under-age children in their capacity of successors in title, shall not be subject to seizure insofar as they constitute maintenance.
The proportion of such amounts not subject to seizure may not, in any event, be less than four-fifths in those cases where the annual amount is at most equal to the highest level of resources in accordance with Chapter V of Title IV of Book I of the Labor Code.
The provisions under this Chapter shall not prevent seizure ordered under the provisions of the Civil Code relating to unpaid maintenance.
Resale Royalty Right
In the event of infringement of Article L. 122-8, the acquirer and the law officials may be pronounced jointly liable for damages in favor of the beneficiaries of the resale royalty right.
As soon as offenses under Article L. 335-4 of this Code have been established, the competent police officers may effect seizure of the unlawfully reproduced phonograms and videograms, of the copies and articles manufactured or imported unlawfully and of the equipment specially installed for the purpose of such acts.
Any edition of writings, musical compositions, drawings, paintings or other printed or engraved production made in whole or in part contrary to the laws and regulations relating to the property of authors shall constitute an infringement; any infringement shall constitute an offense.
Infringement in France of works published in France or abroad shall be punishable with a two-year prison term and a fine of 1,000,000 francs.
The sale, exportation and importation of infringing works shall be subject to the same penalties.
Any reproduction, performance or dissemination of a work of the mind, by any means whatsoever, in violation of the author’s rights as defined and regulated by law shall also constitute an infringement.
The violation of any of the rights of an author of software as defined in Article L. 122-6 shall also constitute an infringement.
Any fixation, reproduction, communication or making available to the public, on payment or free of charge, or any telediffusion of a performance, a phonogram, a videogram or a program made without authorization, where such is required, of the performer, the phonogram or videogram producer or the audiovisual communication enterprise shall be punishable with a two-year prison term and a fine of 1,000,000 francs.
Any importation or exportation of phonograms or videograms made without the authorization of the producer or the performer, where such is required, shall be subject to the same penalties.
Failure to pay the remuneration due to the author, the performer or the phonogram or videogram producer in respect of private copying or public communication or of the telediffusion of phonograms shall be subject to the fine laid down in the first paragraph above.
In the event of conviction for one of the offenses defined in the preceding three Articles, the court may order the total or partial, permanent or temporary closure, for a period not exceeding five years, of the establishment that has served for the commission of the offense.
Temporary closure may not be a cause of either termination or suspension of employment contracts, or of any monetary consequence prejudicial to the employees concerned. Where permanent closure causes the dismissal of staff, it shall give rise, over and above the indemnity in lieu of notice and the termination indemnity, to damages as provided in Articles L. 122-14-4 and L. 122-14-5 of the Labor Code for the breach of employment contracts. Failure to pay those indemnities shall be punishable with a six-month prison term and a fine of 25,000 francs.
In the cases referred to in the four preceding Articles, the court may order confiscation of all or part of the proceeds obtained by reason of the infringement and confiscation of all phonograms, videograms, articles and copies that are infringing or have been unlawfully reproduced and of the equipment specifically installed for the purpose of committing the offense.
It may also order, at the cost of the convicted person, the posting of the judgment in compliance with the conditions and subject to the penalties laid down in Article 51 of the Penal Code, and its publication in full or as extracts in such newspapers as it may designate, without however the costs of such publication exceeding the maximum amount of the fine incurred.
In the cases referred to in the five preceding Articles, the equipment, the infringing articles and the receipts that have been confiscated shall be handed to the victim or his successors in title to compensate them for the prejudice they have suffered; the remaining indemnity, or the entire indemnity if there is no confiscation of equipment, infringing articles or of receipts, shall be settled through ordinary channels.
Legal persons may be declared penalty liable, in accordance with Article 121-2 of the Penal Code, for the infringements defined in Articles L. 335-2 to L. 335-4 of this Code.
Legal persons shall be liable to the following penalties:
- 1° A fine determined in accordance with Article 131-38,
2° The penalties referred to in Article 131-39.
In the event of repetition of the offenses defined in Articles L. 335-2 to L. 335-4, or if the offender is or has been contractually bound to the aggrieved party, the penalties involved shall be doubled.
The customs administration may, at the written request of an owner of copyright or a neighboring right, which request shall be accompanied by proof of his right as provided by Decree in Council of State, withhold in the course of its inspections any goods alleged by him to be infringing that right.
The Public Prosecutor, the plaintiff and the party declaring or in possession of the goods shall be informed without delay by the customs service of the withholding measure that they have taken.
The withholding measure shall be lifted as of right where the plaintiff fails, within 10 working days following notification of the withholding of the goods, to prove to the customs service:
- - either that precautionary measures under Article L. 332-1 have been taken;
- or that he has instituted proceedings before the civil court or the court of misdemeanors and has provided the necessary guarantees to cover his liability in the event of the infringement claim being eventually considered unfounded.
INTELLECTUAL PROPERTY CODE
Application to the Overseas Territories and the Territorial Entity of Mayotte
APPLICATION TO THE OVERSEAS TERRITORIES AND THE TERRITORIAL ENTITY OF MAYOTTE
The provisions of this Code shall apply to the territorial entity of Mayotte with the exception of Articles L. 335-8 and L. 621-1. They shall apply to the overseas territories with the exception of Articles L. 335-8, L. 421-1 to L. 422-10, L. 423-2 and L. 621-1.
For the implementation of this Code and of the provisions it applies to the overseas territories and the territorial entity of Mayotte, the words listed below shall be replaced respectively by the following words:
- - "tribunal de grande instance" and "juges d’instances" by "tribunal de première instance";
- "région" by "territoire" and, in the case of the territorial entity of Mayotte, by "collectivité territoriale";
- "cour d’appel" by "tribunal supérieur d’appel de Mamoudzou" and "commissaire de police" by "officier de police judiciaire" with respect to the territorial entity of Mayotte;
- "tribunal de commerce" by "tribunal de première instance statuant en matière commerciale";
- "conseil de prud’hommes" by "tribunal du travail."
This Law shall be executed as a law of the State.