IP Lexicon
Literary and artistic property
Literary and artistic property is one of the two branches of intellectual property.
It is governed by articles L.111-1 to L.343-7 of the Intellectual Property Code, in particular, as well as various texts at the European and international levels, such as the Berne Convention of 1886.
The law of literary and artistic property corresponds to the following fields:
- Copyright, which applies to works of the mind ;
- Related rights, which revolve around intellectual works protected by copyright without infringing it and apply in particular to performers, producers of videograms and producers of phonograms;
- Database law, which is sometimes sui generis, sometimes copyright.
These different intellectual assets are thus susceptible to be protected by law, as long as they meet the conditions associated with the corresponding protection regime.
In this respect, it is important to distinguish literary and artistic property from industrial property, in that the protection granted by the former is not conditioned by the requirement of a registration before the Intellectual Property Offices, unlike the latter.
Indeed, article L.111-1 of the Intellectual Property Code, paragraph1, for example, states that ” The author of a work of the mind enjoys an exclusive intangible property right on this work, by the sole fact of its creation, which is enforceable against all”.
Thus, in terms of copyright, the legal protection of the author’s work of the mind arises from its creation.
However, in order to benefit from copyright protection, the work of the mind in question must be original, that is, it must bear the imprint of its author‘s personality.
In France, a country that is particularly protective of authors, the rights granted to the author over his work are of two types:
- Patrimonial: namely the rights on the exploitation of the work, and in particular the right of representation, of 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 right of disclosure, that is to say, the right to decide whether or not to make his work public, the right of authorship, which allows him to have the right to associate his name with his work, the right to respect the integrity of the work and the right of repentance.
The moral right is perpetual, inalienable and imprescriptible.
In terms of neighboring rights, Law No. 2019-775 enacted on July 24, 2019 extended the protection conferred under neighboring rights to the field of publishing.
Indeed, press agencies and publishers can now claim protection under neighboring rights.
500 million for non-compliance with the injunctions issued by the Authority in its decision n° 20-MC-01 of April 9, 2020.
In particular, the Authority had enjoined Google companies to negotiate in good faith the remuneration due for related rights with publishers and news agencies.
The Authority considered that Google did not propose a remuneration according to objective, transparent and non-discriminatory criteria, so that good faith in the conduct of negotiations could not be established. (Autorité de la concurrence, July 12, 2021, decision n°21-D-17).
This decision has not been appealed by the Google companies, it being specified that they had been dismissed from their appeal against the first decision rendered by the Authority in 2020 (Cour d’appel de Paris, October 8, 2020, n°20-08071).
Point of law
Article L.112-2 of the Intellectual Property Code offers a non-exhaustive list of creations that can be considered as works of the mind, namely
“ (1) Books, pamphlets and other literary, artistic and scientific writings;
2° Lectures, speeches, sermons, pleadings and other works of the same nature;
3° Dramatic or dramatico-musical works;
4° Choreographic works, circus numbers and tricks, pantomimes, whose implementation is fixed in writing or otherwise;
5° Musical compositions with or without words;
6. Cinematographic and other works consisting of animated sequences of images, with or without sound, known as audiovisual works;
7° Works of drawing, painting, architecture, sculpture, engraving, lithography ;
8° Graphic and typographic works;
9° Photographic works and those made using techniques similar to photography;
10° Works of applied arts;
11° Illustrations, maps;
12° Plans, sketches and plastic works relating to geography, topography, architecture and science;
(13) Software, including preparatory design material;
14° The creations of the seasonal industries of the clothing and the adornment. Seasonal clothing and ornamental industries are those industries which, because of the requirements of fashion, frequently renew the form of their products, and in particular sewing, fur, lingerie, embroidery, fashion, footwear, glove-making, leather goods, the manufacture of fabrics of high novelty or special to high fashion, the productions of paruriers and boot-makers, and the factories of furnishing fabrics. “
Update on the Soleau envelope
Even if the protection granted by the literary and artistic property is not conditioned to the requirement of a deposit, it remains recommended, in certain cases to resort to the Soleau envelope which consists in the deposit of a creation or a project with the INPI, which will preserve it during 5 years.
This mechanism is very useful to prove the date of creation of a work of the mind, for example, if it has never been disclosed.
The protection of literary and artistic property law as a whole is a bulwark against the counterfeiting of artistic creations and in particular of works of the mind, promotes creation and enriches culture.
The Bouchara firm assists you in particular in :
- The development of a strategy to protect your creations and your literary and artistic property rights;
- The formalities related to the Soleau envelope ;
- The protection and defense of your creations and your rights before the Courts;
- The contractualization of your copyrights ( transfer contract, license contract etc…).