Author

The author is the person at the origin of the creation of a work of the mind and who has, by the sole fact of his creation, copyright.

Type of rights

These intellectual property rights (field of literary and artistic property) consist of rights :

• Patrimonial: to know the rights on the exploitation of the work, and in particular the right of representation, reproduction etc… – they allow the author to obtain a remuneration and ;

• Extrapatrimonial: these are the moral rights of the author, namely those attached to his person.

These exclusive rights confer to the author respect of his name, his quality and his work.

Thus, the author retains the right of disclosure, i.e. the right to decide whether or not to make his or her work public, the right of authorship, which allows him or her to have the right to associate his or her name with his or her work, the right to respect for the integrity of the work and the right of repentance.

The moral right is perpetual, inalienable and imprescriptible.

Duration of the rights

In France, a country that is particularly protective of intellectual works, authors have rights, subject to originality, from the time of their creation and throughout their lives.

These rights continue for a period of 70 years after his death.

If the rights are held by a legal entity, they expire 70 years after the disclosure of the work to the public.

Proof of authorship

Proof of authorship is an essential prerequisite for the exercise of the law and can be difficult to prove.

Article L.113-1 of the Intellectual Property Code states that “the quality of author belongs, unless proven otherwise, to the person or persons under whose name the work is disclosed”.

Contrary to a trademark, a design or a patent (which require the registration of an intellectual property title with an Office in order to be the owner in the eyes of third parties), a simple presumption of authorship is established by the law.

However, this presumption can be reversed in certain situations.

It will then be up to the author to prove by all means his quality and originality of his creation as well as its content (we speak about materiality of the work) .

A creation can be of any nature (drawing, architectural product, clothing, painting, musical composition, sculpture, etc…) and can thus be carried out on any material and/or digital support.

Originality

If the proof of the existence of the creation must be reported, it is still necessary to be able to demonstrate that it is original, in particular with regard to the existing prior art, in order to be able to invoke an exclusive right.

A creation is original if it bears the imprint of the author’s personality.

Assignment of rights

The author can exercise close control over the exploitation of his original creations by providing for a copyright assignment contract with the company that would exploit his works.

The protection of intellectual works is a complex and constantly changing field.

If the protection by the copyright seems a priori automatic, it is nevertheless up to the author to prove his quality as well as the originality of his creation in case of conflict, these attributes being appreciated by the judges.

However, if in France the jurisprudence in this matter is dense and detailed, it is strongly recommended to seek a lawyer specialized in copyright or an intellectual property counselor (IPC ) to ensure the best protection and defense of your rights, particularly in the context of agreements concerning copyright and counterfeit matters.

Point of jurisprudence

The ‘Cour d’appel de Paris’ recently clarified the assessment of originality in the field of jewelry creation (CA, Paris, February 15, 2022, n°19-12.641):

“If the notion of anteriority is indifferent in copyright law, the one who avails himself of this protection must rather justify that the claimed work presents a specific physiognomy translating an aesthetic bias reflecting the imprint of the personality of its author, originality must be assessed in relation to already known works in order to determine whether the claimed creation is sufficiently clear and significant, and whether these differences result from a creative effort, marking the claimed work with the imprint of its author’s personality.

The combination of elements which in themselves do not present originality can manifest a creative effort if it confers to the claimed work a specific physiognomy distinguishing it from those belonging to the same genre and translating an aesthetic bias of the creator.

Update on exceptions to copyright

In France, there are exceptions to the exclusive right of the author on his work, which are set out in article L.122-5 of the Intellectual Property Code.

The French law authorizes the use of the author’s works without his authorization by third parties in the following cases:

• Representation in the family circle;
• The reproduction is strictly reserved for the private use of the copyist;
• Dissemination for public information purposes;
• Parody, pastiche and caricature.

These exceptions are strictly interpreted by the jurisprudence, which adopts an in concreto approach with regard to all of the circumstances of the case in each individual case.

Update on SACEM’s role in musical works

The Société des Auteurs, Compositeurs et Éditeurs de Musique (SACEM), founded in 1851, has as its main mission to collect royalties on musical works and to pay them to authors, composers and publishers.

Point of jurisprudence

The Court of Appeal of Versailles, in a recent decision of March 22, 2022, was able to recall that ” the copyright protection of a “work” implies that the object is original, i.e. that it is identifiable with sufficient precision and objectivity on the one hand, and that it reflects the personality of its author by the manifestation of the latter’s free and creative choices on the other hand. “(Versailles Court of Appeal, March 22, 2022, No. 20-03.988).

The Court goes on to specify each of the conditions as follows:

“…]originality necessarily implies the existence of an identifiable object with sufficient precision and objectivity. Indeed, on the one hand, the authorities in charge of protecting the exclusive rights inherent in copyright must be able to know with clarity and precision the object thus protected. The same applies to third parties to whom the protection claimed by the author of this object may be invoked. On the other hand, the need to eliminate any element of subjectivity, which is harmful to legal certainty, in the process of identifying the said object presupposes that the latter has been expressed in an objective manner. Thus, an identification based essentially on the sensations, intrinsically subjective, of the person who perceives the object in question does not meet the requirement of precision and objectivity.

“…] for an object to be considered original, it is both necessary and sufficient that it reflects the personality of its author by manifesting the free and creative choices of the latter. On the other hand, where the making of an object has been determined by technical considerations, rules or other constraints, which have left no room for the exercise of creative freedom, that object cannot be regarded as having the originality necessary to be able to constitute a work (CJEU, 12 September 2019, C.683/17, Cofemel – Sociedade de Vestuário SA v G-Star Raw CV).”

The Bouchara Law firm assists you in particular in :

• Optimizing the protection of your copyrights;
• The defense of your works within the framework of action in counterfeiting and action in unfair competition in particular vis-a-vis the use and/or the diffusion of your works by thirds (pure copy, incorporation etc?) without your authorization;
• The contractualization of copyrights (contract of exploitation, contract of transfer, contract of license, etc.) ;
• The filing of your creations(trademarks, designs etc. …) before the Intellectual Property Offices(INPI, EUIPO, WIPO etc.);
• The management and defense of your intellectual property rights (nullity action, seizure of infringement, infringement action, etc.).