Intellectual property - Seminar 2 - Author's rights - February 2015

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Céline Bondard, 02-15 1
Maître
Céline
Bondard

cb@bondard.fr

Cabinet
Bondard

www.bondard.fr

Intellectual Property
Seminar 2: Author’s rights
February 2015: Sciences-Po Paris

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I. Introduction – Map of seminars
1. Intellectual property: an introduction
Economics / Different types of protection available
2. Copyright law and related questions
Author's rights / Exceptions to copyright law / Personnality rights
3. Enforcement of IP rights and Infringement issues
Types of enforcement of IP rights / Copyright infringement
4. WORKSHOP: on copyright law, infringement and related issues
5. Mock trial on copyright and infringement
6.  Intellectual property contracts
Different types of IP contracts / How to draft an IP clause / Creative commons
7. WORKSHOP: on intellectual property contracts and creative commons
8. Intellectual property issues on the Internet
Terms of use / Personal data

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Seminar 2 – Author’s rights / copyright
A. Rights on works of the mind
1. Rights granted by author’s rights in France
2. What may be protected
3. How to protect a creation by using authors’ rights
B. Distribution of intellectual property rights
1. Managed creations
2. Group creations
3. Author’s rights exemptions
C. Author’s rights: other considerations
1. What is a derivative work of mind?
2. What is image rights / personnality rights?
3. American perspective: what is « work made for hire »?

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1. What rights are granted by author’s rights in France
I. Author’s rights– A. Rights on works of the mind
L.111-1 CPI: « 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 well as attributes of an economic nature ».
- A property right;
- Exclusive and enforceable against all;
- Economic and moral rights /attributes.
But: no registration of Author’s rights in France, therefore no monopoly.
The term « author’s right » (droit d’auteur) is used to describe the right granted to
authors of original forms of expression in civil law countries. The term
« copyright » refers to the corresponding right in Anglo-American legal systems.

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Moral rightsEconomic rights
L. 123-1 IPC: « 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, that right shall subsist for
his successors in title during the current calendar year
and the 70 years thereafter ».
Elements of economic rights:
Right of communication /performance: Right
to communicate your creation to the public (art L
122-2 IPC), in public and live (concert, theatre) or
with the help of physical supports (book, disc…).
Right of reproduction: Right to authorize the
physicial fixation of the creation on any support
in order to indirectly communicate it to the
public (art L 122-3 CPI).
L. 121-1 IPC: «An author shall enjoy the right to respect
for his name, his authorship and his work. (…). It shall
be perpetual, inalienable and imprescriptible. It may be
transmitted mortis causa to the heirs of the author ».
Elements of moral rights:
- The right of paternity;
- The right of integrity;
- The right of divulgation or dissemination, i.e., to
decide when and where a work should be made
public;
- The right of reconsideration, i.e., to withdraw a
work from commerce, on the condition that the
author indemnifies the transferee for any loss.
1. What rights are granted by author’s rights in France

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2. What may be protected?
Press
Brochure
Paper and electronic
Website
Audiovisual and audio
documents
Documentaries
Registration of
conferences
Interviews
Multimedias documents
Photographs Ideas
Blu-ray, DVD, CD-
ROM
Software

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Where to get it? At the INPI, on the Internet or at their regional offices.
When to place it
and for how long?
Whenever, ideally once you have a final version of your creation, or even at every
step during the creation process. The envelope is kept for 5 years, renewable once.
Who can place it?
Anyone who wishes to constitute a proof of anteriority for inventions valid in
France, exclusively to precisely ascertain the date of the creation of a work.
What may it
contain?
- Two compartments: one for you, one for the INPI.
- Introduce in every compartment the elements you wish to date: description or
reproduction in two dimensions (texts, picture, photographs) of your creation.
The envelope shall not contain « hard bodies » (cardboard, disc, USB key, etc…)
The « Soleau » envelope

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1. Rights granted by author’s rights in France
2. What may be protected
2. Group creations

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Interns
(employees)
Outside partners
(webmaster, speakers, …)
The author has extensive rights:
L. 111-1 IPC:
« 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 »
and « the existence or conclusion of a contract for hire or of
services by the author of a work of the mind shall in no way
derogate from the enoyment of the right afforded by in the first
paragraph above (…) ».
è Sign a contract with all parties;
è But this is not sufficient: there is no implied assignment in the silence of the
contract;
è You must verify the assignment of rights and its width;
è The assignment or rights is limited to the object of the contract;
è If the contract does not specify anything, then the author is the owner of his / her
work, even if that work has been made upon the direction of a third party.
1. Managed creations and contracts

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II. Author’s rights: distribution of IP rights
Collective work?
Collaborative work?
L. 113-2 IPC : « Collective work shall
mean a new work in wich a pre-existing work
is incorporated without the collaboration of
the author of the latter work. »
L. 113-2 IPC: « Work of collaboration
shall mean a work in the creation of which
more than one natural person has
participated »
RIGHTS: The contributors may exploit
autonomously their contributions, but
cannot compete with the owner regarding
the rights on the entire work.
RIGHTS: All contributors have the same
rights on the work of mind and take
collective decisions.
2. Group creations

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II. Author’s rights: distribution of IP rights
LIMITED LIST OF EXEMPTIONS:
•  Private and free performances;
•  Short citations (cite the author, and use quotation marks);
•  Analysis (critical or educational character);
•  Press review;
•  Broadcasting of political speech (informational goal);
•  Educational activities;
•  Parody (Article 122-5 of the IPC).
è In all other situation, the authorization of the author
shall be requested, otherwise it’s infringement!
DEFINITION:
•  Article 122-5 IPC: Once the author has divulged his work, he can’t forbit certain exploitations of it. In
these instances, even if there is exploitation of the work, there is no infringement!

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1. Droits accordés par le droit d’auteur
2. What rights are granted by author’s rights
2. Group creations

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What is a derivative work?
Definition: work based on one or several preexisting
works of the mind.
Exemples: Traduction, musical adaptation, synopsys of
a story, musicale, résumé d’une histoire
Who has rights on
derivative works ?
A derivative work can be made by the original author or
by a third party WITH the authorization of the author.
1. Derivative work
Batman

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2. Image rights / personality rights in France
Personality rights are not protected by French law directly, but through the interpretation
of the article 9 of the Civil code, on the respect of one’s private life: «Everyone is entitled to
the respect of one’s private life »
Limitation: after publication of the photograph, if your house becomes a touristic place for instance, and that
tourists come and go before it, creating a prejudice for you, you can requeste for the picture not to be published.
PRIVATE HOUSE: Right to exploit the picture without the authorization of the owner, as long
as the reproduction and commercial exploitation don’t create any prejudice for the owner.
Limitation: Right to protection stops when the work of art is reproduced not as such, but by
necessity, in the context of a shot taken in a public place.
WORK OF ART: Shall ask for the authorization of the author (scultpure for instance), in order to
exploit the picture, unless it has fallen into public domain.
Limitation: if you participate to a public manifestation, you implicitely give the right to be
protographed.
PEOPLE: Right to one’s image is valid for public or private persons, known or unknown, because
everyone is entitled to the respect of his or her private life.

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3. American Perspective « Work made for hire »
1. The work is created by an INDEPENDENT CONTRACTOR. It is a
« work for hire » if:
•  He is paid to create an original work of mind, AND
•  Both parties have agreed on the « work for hire » status before the work
began, AND
•  The work is encompassed in one of the 9 types of contributions evoked
by the Copyright Act (translation; motion picture or other audiovisual
work ;collective work; an atlas; a compilation; instructional text; a test; answer material
for a test; and supplemental work.
•  A mere payment of the work is not sufficient for it to be deemed a
« work for hire »!
2.The work is created by an EMPLOYEE in the context of his work. No
need for the contract to specify the rights of the employee and the company: the
invention mission is implicit.
In the US, it is possible for a company to be the author of a work, then said to
be a « work made for hire ». This works in the following two cases:

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Illustration: personality rights
The Louvre Museum case
• The Louvre Museum vas a victim to a burglary.
• The newspaper « Art News » publishes an article on the burglary,
which it chooses to illustrate by a photography of the Louvre
museum, reproducing, noticeably, the Louvre pyramid.
• What do you think?

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Illustration: personality rights
The Louvre Museum case
•  Who has rights on the article?
•  Who would the Louvre sue, theoretically? The photographer? The newspaper?
•  Are we talking about personnality rights or image rights?
•  Right to one’s image
•  Who has rights to the Louvre Building?
•  Who has rights to the Louvre pyramid?
•  « Accessory » theory

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II. Droit d’auteur – D. Conclusion
Maître Céline Bondard
Attorney at Law, Paris & New York
Bondard and Partners
www.bondard.fr
cb@bondard.fr

Intellectual property - Seminar 2 - Author's rights - February 2015

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