Crowdourcing and intellectual property…

I – Conditions of protection

The general rules of intellectual property apply to crowdsourcing.

Thus, a creation can be protected by copyright under Article L.112-1 of the Intellectual Property Code if it is original and bears the imprint of the author’s personality.

There are several typographies of works:

• The individual work: this is a work that is made by a single author. In this case, the author is the only one to hold the rights on his creation (article L113-1 of the Code of the Intellectual Property);

• Collaborative work: this is a work that is produced by several authors, but in which it is impossible to determine which part of the work is attributable to one or the other. In this case, each author has a monopoly of exploitation of the work. All authors must therefore give their agreement to be able to exploit the creation (article L113-3 of the Intellectual Property Code);

• The collective work: it is a work which is realized at the initiative of a coordinator and by several authors but for which it is impossible to distinguish the rights of each one in the final realization. In this case, the coordinator is the only one to hold the rights to the collective work (article L113-5 of the Intellectual Property Code);

• The composite work: it is a work which is realized from a pre-existing work but without the collaboration of its author.

In this case, the composite author benefits from rights on the work but can only exploit it with the agreement of the author of the pre-existing work (article L113-4 of the Intellectual Property Code).

II – The transfer of rights

A- Theoretical formalism of the transfer of rights

Whatever the method of crowdsourcing, the resulting works must be the subject of a transfer of rights to the benefit of the company that wishes to exploit them.

The transfer of rights is subject to a certain formalism by virtue of the provisions of article L.131-3 of the Intellectual Property Code:

• Each of the rights assigned must be mentioned separately in the deed of assignment (performance right, reproduction right, adaptation right);

• The field of exploitation of the assigned rights must be delimited as to its extent, its destination, the place and the duration of the exploitation.

It is therefore very important for a company using crowdsourcing to obtain the rights to the works it could potentially exploit.

If it does not do so, it exposes itself to the risk that the Internet users, who will have participated in the creation of the work and who will therefore be authors of the work in their own right, will be considered as the exclusive owners of the copyright in the work.

The company’s liability could therefore be brought into play as a copyright infringement (article L.122-4 of the Intellectual Property Code).

B- The formalism of the transfer of rights applied to crowdsourcing

1. The prohibition of the global transfer of copyright in future works

Very often, by validating in advance the General Terms of Use of the crowdsourcing platform, the Internet user consents, before the creation, to the transfer of his rights on the work that will potentially be retained by the organizing company.

Organizing companies must be extremely vigilant in this regard.

Indeed, the article L.131-1 of the Code of the Intellectual Property forbids the global transfer of the author’s rights on the future works of the latter.

Thus, it is necessary to foresee assignment contracts after the creation, ideally at the time of the awarding of the prize to the winner(s).

Many platforms today provide for the signing of “contractual agreements”. Contracts for the transfer of exploitation rights “, between ” the author as the winner of the XXX Contest organized on the platform “and the company that used the platform, after the announcement of the results of the contest (Contract of transfer of exploitation rights, EYEKA platform).

2. Towards an implicit transfer of copyright?

Article L.131-3 of the Intellectual Property Code prohibits the implicit transfer of copyright by requiring explicit mention of the rights transferred in the formal transfer contract between the Internet user and the organizing company.

These assigned rights must also be well specified and delimited.

Even if the principle of the Intellectual Property Code remains that of the strict interpretation of the transfer of copyright (article L.131-3 of the Intellectual Property Code), the jurisprudence sometimes tends to admit the implicit transfer of copyright.

This seems to be the case when a company calls upon a sub-operator to produce graphic works (CA Paris, pole 5, ch. 1, Nov. 18, 2009, RG 08/08695).

In this case, the judge has ruled out that the sub-operator who is the assignee of the copyright can claim article L. 131-3 of the Intellectual Property Code, which is intended to protect the rights of the author:

” to protect the interests of the author (…) natural person, in the exercise of his economic rights, to the exclusion of the agreements that commercial companies, assignees of the economic rights of the author, may conclude with their sub-operator clients. “

The judge thus specifies that :

” the respondent company, which could not be unaware, in its capacity as a communications professional, that its graphic creations, and in particular its logos, were necessarily intended to be distributed and reproduced, did not express any reservation as to its copyright when the specifications were signed, nor did it make any claim in this regard at any time during the course of the commercial relationship. There was therefore an implicit transfer to the festival’s organizing company of the rights to the creations made in execution of the order contracts binding the parties. ”

We sporadically find this same idea of acceptance of the tacit transfer by the judge concerning the mandates given by the authors of original images to press agencies with the aim of marketing them (Cass., Civ.1, May 30, 2012, n°10-17.780; TGI Paris, February 24, 2017, RG 15/02651).

In this respect, the court relied on the former articles 1134 and 1135 of the Civil Code relating to the performance of contracts in good faith, their interpretation and equity between contracting parties (rules now enshrined in article 1104 of the Civil Code).

In a more procedural way, if we look at it from the point of view of the company sponsoring the crowdsourcing, the idea of an implicit transfer of copyrights is quite defensible as long as the common intention of the parties since the beginning of their relationship is demonstrated.

If the courts were to follow this course, however, the assignment of rights would be limited to the original proposal of the organizing company. The rights assigned may not be more extensive than the presentation of the project by the sponsoring company at the time of the launch of the competition.

For example, if the company organizes a crowdsourcing event on the creation of a visual for a predetermined operation, at a predetermined date, the visual cannot be used for a purpose other than the one previously agreed upon.

C- The survival of moral rights

It is important to remember that the author of the work retains his moral rights on his work, which is an extrapatrimonial and imprescriptible right under Article L.121-1 of the Intellectual Property Code.

However, several cases may arise:

• The company uses the work of only one author: the latter may invoke his moral rights but he must prove the distortion of his work;

• The company uses the work of several authors (participants in the competition): It will be necessary to qualify the work before determining the ownership of the moral right:
  • If it is a collective work, the company alone will have the moral right;
  • If it is a collaborative work, all the authors of the work will have to agree in order to be able to invoke their moral rights, which means that in practice, given the number of participants in these games/contests, it will be very complicated for all the authors to invoke their moral rights.

It will be necessary to be very attentive to the cases of figure to know the regime applicable to the moral right of the author of the work.

III – The remuneration

Finally, there is the question of remuneration for Internet users who are authors of crowdsourced works.

In terms of transfer of copyright, the principle is that the authors of a work receive a remuneration proportional to the profits made on the work, and in certain limited cases, a lump sum remuneration according to article L. 131-4 of the Intellectual Property Code.

However, it is likely that the use of lump-sum payments will be accepted in this case, since the basis for calculating the proportional remuneration cannot be determined in a practical manner (TGI Paris, December 16, 1980).

Nevertheless, if the creation allows for the determination of a proportional remuneration, it should be used.

There are also many free contributions such as WIKIPEDIA, TRIPADVISOR or YELP to name a few.

These are sites on which Internet users can share a certain amount of information without any payment.

This form of crowdsourcing is totally legal. Indeed, article L.122-7 of the Intellectual Property Code allows any author to make his work available to the public free of charge.

The evolution of social networks, as spaces of exchange, allows crowdsourcing to reach new audiences more easily.

The multiplication of these social platforms also allows participative productions to take a very special place in the eyes of companies that can find a very competitive source of creation.

The Intellectual Property Code is perfectly applicable but jurisprudential adjustments will necessarily be made in the years to come.