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Journal Officiel de la République
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Intellectual
Property Code
INTELLECTUAL PROPERTY CODE
Dernier texte modificateur Loi
2003-706 du
Chapter
I: Nature of Copyright
Article L111-1.
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, 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.
Article L111-2
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.
Article L111-3
The incorporeal property right set out in
Article L111-1 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 L123-4. 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 may take
any appropriate measure, in accordance with the provisions of Article L121-3.
Article L111-4
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.
Article L111-5
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.
Article L112-1
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.
Article L112-2
(Act No. 94-361 of 10 May 1994 art. 2
Official Journal of 11 May 1994)
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, fashion, 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.
Article L112-3
(Act No. 96-1106 of 18 December 1996 Art.
1 Official Journal of 19 December 1996)
(Act No. 98-536 of 1 July 1998 art. 1
Official Journal of 2 July 1998)
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 the authors of anthologies or
collections of miscellaneous works or data, such as databases, which, by reason
of the selection or the arrangement of their contents, constitute intellectual
creations.
Database means a collection of independent works, data or other materials,
arranged in a systematic or methodical way, and capable of being individually
assessed by electronic or any other means.
Article L112-4
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 L123-1 to L123-3, to distinguish a
work of the same kind if such use is liable to create confusion.
Chapter
III: Owners of Copyright
Article L113-1
Authorship shall belong, unless proved
otherwise, to the person or persons under whose name the work has been
disclosed.
Article L113-2
“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.
Article L113-3
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.
Article L113-4
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.
Article L113-5
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.
Article L113-6
The authors of pseudonymous and anonymous
works shall enjoy in such works the rights afforded by Article L111-1.
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.
Article L113-7
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.
If an audiovisual work is adapted from a
preexisting work or script which is still protected, the authors of the
original work shall be assimilated to the authors of the new work.
Article L113-8
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 L113-7 and those of Article L121-6 shall apply to radio works.
Article L113-9
(Act No. 94-361 of 10 May 1994 art. 2
Official Journal of 11 May 1994)
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.
Article L121-1
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.
Article L121-2
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 L132-24.
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 L123-1.
Article L121-3
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 L121-2, 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.
Article L121-4
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.
Article L121-5
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 L121-1, may be exercised by those authors only in respect of the
completed audiovisual work.
Article L121-6
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.
Article L121-7
(Act No. 94-361 of 10 May 1994 art. 2
Official Journal of 11 May 1994)
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 L122-6 where such
modification does not prejudice either his honor or his reputation;
2°.exercise his right to reconsider or of
withdrawal.
Article L121-8
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.
Article L121-9
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
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.
Chapter
II: Patrimonial Rights
Article L122-1
The right of exploitation belonging to the
author shall comprise the right of performance and the right of reproduction.
Article L122-2
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;
2°.telediffusion.
Telediffusion shall mean distribution by
any telecommunication process of sounds, images, documents, data and messages
of any kind.
Transmission of a work towards a satellite
shall be assimilated to a performance.
Article L122-2-1
(inserted by Act No. 97-283 of 27 Mars
1997 art. 1 Official Journal of 28 Mars 1997)
The right of performance of a work
broadcast by satellite shall be governed by the provisions of this Code where
the work is transmitted to the satellite from the national territory.
Article L122-2-2
(inserted by Act No. 97-283 of 27 Mars
1997 art. 1 Official Journal of 28 Mars 1997)
The right of performance of a work
broadcast by satellite which is transmitted from the territory of a
1°.where the uplink to the satellite is
provided by a station situated on the national territory, in which case the
rights provided for in this Code shall be exercisable against the person
operating the uplink station;
2°.where the uplink to the satellite is
not provided by a station situated in a Member State of the European Community,
and where the transmission takes place at the request, on behalf or under the
control of an audiovisual communication enterprise having its principal
establishment on the national territory, in which case the rights provided for
in this Code shall be exercisable against the said audiovisual communication
enterprise.
Article L122-3
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.
Article L122-4
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.
Article L122-5
(Act No. 94-361 of 10 May 1994 art. 5 II
Official Journal of 11 May 1994)
(Act No. 97-283 of 27 Mars 1997 art. 17
Official Journal of 28 Mars 1997)
(Act No. 98-536 of 1 July 1998 art. 2 and
art. 3 Official Journal of 2 July 1998)
(Act No. 2000-642 of 11 July 2000 art. 47
Official Journal of
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, as well as copies or reproductions of
an electronic database;
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 broadcasting,
as current news, of speeches intended for the public made in political,
administrative, judicial or academic gatherings, as well as in public meetings
of a political nature and at official ceremonies;
d) complete or partial reproductions of works of graphic or three-dimensional
art intended to appear in the catalogue of a judicial sale held in France, in
the form of the copies of the said catalogue made available to the public prior
to the sale for the sole purpose of describing the works of art offered for
sale.
A decree by the Conseil d’Etat shall determine the characteristics of the
documents and the conditions governing their distribution.
4°. parody, pastiche and caricature, observing the rules of the genre.
5°. acts necessary to access the contents of an electronic database for the
purposes of and within the limits of the use provided by contract.
Article L122-6
(Act No. 94-361 of 10 May 1994 art. 5I
Official Journal of 11 May 1994)
Subject to the provisions of Article
L122-6-1, 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.
Article L122-6-1
(Act No. 94-361 of 10 May 1994 art. 5I
Official Journal of 11 May 1994)
I.The acts referred to in items 1 and 2 of
Article L122-6 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 L122-6, 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.
The information thus obtained may not:
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.
V. This Article may not be interpreted in
such a way as to prejudice the normal exploitation of the software or to cause
unreasonable prejudice to the author’s legitimate interests.
Any stipulation contrary to the provisions
of paragraphs II, III and IV of this Article shall be null and void.
Article L122-6-2
(Act No. 94-361 of 10 May 1994 art. 5I
Official Journal of 11 May 1994)
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 Conseil d'Etat shall
lay down the implementing rules for this Article.
Article L122-7
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.
Article L122-8
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 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.
Article L122-9
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 L121-2, 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.
Article L122-10
(inserted by Act No. 95-4 of 3 January
1995 art. 1 Official Journal of
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.
Article L122-11
(inserted by Act No. 95-4 of 3 January
1995 art. 1 Official Journal of 4 January 1995)
The agreements referred to in Article
L122-10 may provide for lump sum remuneration in the cases defined in items 1
to 3 of Article L131-4.
Article L122-12
(inserted by Act No. 95-4 of 3 January
1995 art. 1 Official Journal of 4 January 1995)
Approval of the societies referred to in
the first paragraph of Article L122-10 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 reprographicre production right;
— the equitable nature of the conditions
foreseen for distributing the amounts collected.
A Decree in Conseil d'Etat shall
lay down the conditions for granting and withdrawing such approval and also the
choice of the assignee societies in application of the final sentence of the
first paragraph of Article L122-10.
Chapter
III: Term of Protection
Article L123-1
(Act No. 97-283 of 27 Mars 1997 art. 5
Official Journal of 28 Mars 1997 in force on 1 July 1995)
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.
Article L123-2
(Act No. 97-283 of 27 Mars 1997 art. 6
Official Journal of 28 Mars 1997 in force on 1 July 1995)
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 audiovisual works, the
calendar year taken into account shall be that of the death of the last
survivor of the following joint authors: the author of the scenario, the author
of the dialogue, the author of the musical compositions, with or without words,
specially composed for the work and the main director.
Article L123-3
(Act No. 97-283 of 27 Mars 1997 art. 7
Official Journal of 28 Mars 1997 in force on 1 July 1995)
In the case of pseudonymous, anonymous or
collective works, the term of the exclusive right shall be 70 years from
January 1 of the calendar year following that in which the work was published.
The publication date shall be determined by any form of proof recognized by the
general rules of law, particularly by statutory deposit.
Where a pseudonymous, anonymous or
collective work is published in installments, the term shall run as from
January 1 of the calendar year following the date on which each installment was
published.
Where the author or authors of anonymous
or pseudonymous works reveal their identity, the term of the exclusive right
shall be that provided for in Article L123-1 or Article L123-2.
The provisions of the first and second
paragraphs shall apply only to pseudonymous, anonymous or collective works
published during the 70 years following the year of their creation.
Nevertheless, where a pseudonymous,
anonymous or collective work is disclosed on the expiry of the term mentioned
in the foregoing paragraph, its owner by succession or on another ground who
publishes it or causes it to be published shall enjoy exclusive rights for 25
years from January 1 of the calendar year following that of publication.
Article L123-4
(Act No. 97-283 of 27 Mars 1997 art. 1
Official Journal of 28 Mars 1997 in force on 1 July 1995)
In the case of posthumous works, the term
of the exclusive right shall be that provided for in Article L123-1. In the
case of posthumous works disclosed after the expiry of that term, the term of
exclusive rights shall be 25 years from January 1 of the calendar year
following that of publication.
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 L123-1.
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.
Article L123-6
(Act No. 2001-1135 of 3 December 2001 art. 15 IV
Official Journal of 4 December 2001 in force on 1 July 2002)
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 Articles 756 to 757-3 and 764 to 766 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 and 914
of the Civil Code.
Such right shall lapse should the spouse contract a
new marriage.
Article L123-7
(Act No. 97-283 of 27 Mars 1997 art. 9
Official Journal of 28 Mars 1997 in force on 1 July 1995)
After the death of the author, the resale
royalty right referred to in Article L122-8 shall subsist to the benefit of the
heirs and, with respect to usufruct laid down in Article L123-6, of the spouse,
to the exclusion of all legatees and successors in title, for the current
calendar year and 70 years thereafter.
Article L123-8
The rights afforded by the Act 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.
Article L123-9
The rights afforded by the above mentioned
Act of July 14, 1866, and by Article L123-8 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.
Article L123-10
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.
Article L123-11
Where the rights extended under Article
L123-10 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.
Article L123-12
(inserted by Act No. 97-283 of 27 Mars
1997 art. 10 Official Journal of 28 Mars 1997 in force on 1 July 1995)
Where the country of origin of the work,
within the meaning of the Paris Act of the Berne Convention, is a country
outside the European Community and the author is not a national of a Member
State of the Community, the term of protection shall be that granted in the
country of origin of the work, but may not exceed that provided for in Article
L123-1.
Article L131-1
Total transfer of future works shall be
null and void.
Article L131-2
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.
Article L131-3
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.
Article L131-4
(Act No. 94-361 of 10 May 1994 art. 6
Official Journal of 11 May 1994)
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.
Conversion, at the author’s request,
between the parties of the rights under existing contracts to lump sum
annuities for periods to be determined between the parties shall also be
lawful.
Article L131-5
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.
Article L131-6
Any assignment clause affording the right
to exploit a work in a form that is unforeseeable and not foreseen on the date
of the contract shall be explicit and shall stipulate participation correlated
to the profits from exploitation.
Article L131-7
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.
Article L131-8
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 L112-2 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.
Section
1 Publishing Contracts
Article L132-1
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.
Article L132-2
A contract at the author’s expense shall
not constitute a publishing contract within the meaning of Article L132-1.
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.
Article L132-3
A contract at joint expense shall not
constitute a publishing contract within the meaning of Article L132-1.
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.
Article L132-4
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.
Article L132-5
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 L132-6, a lump sum remuneration.
Article L132-6
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.
Lump sum remuneration may also be paid for
the assignment of rights by or to a person or enterprise established abroad.
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.
Article L132-7
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.
Article L132-8
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.
Article L132-9
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.
Article L132-10
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.
Article L132-11
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.
Article L132-12
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.
Article L132-13
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.
Article L132-14
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.
Article L132-15
Judicial rehabilitation of the publisher
shall not terminate the contract. Where activities are continued in application
of Articles 31 et seq. of Act No. 85-98 of
Where the publishing enterprise is sold in
application of Articles 81 et seq. of the above-mentioned Act No. 85-98 of
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 Act No. 85-98 of
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.
Article L132-16
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.
Article L132-17
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.
Section
2: Performance Contracts
Article L132-18
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 L131-1 may be waived.
Article L132-19
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.
Article L132-20
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.
Article L132-20-1
(inserted by Act No. 97-283 of 27 Mars
1997 art. 2 Official Journal of 28 Mars 1997)
I. As from the date of the entry into
force of Act No. 97-283 of March 27, 1997, the right to authorize the
simultaneous, complete and unchanged cable retransmission on the national
territory of a work broadcast from a Member State of the European Community may
be exercised only through a royalty collection and distribution society. If
that society is governed by Title II of Book III, it shall be approved for the
purpose by the Minister responsible for culture.
Where the owner of the rights has not
already entrusted the management of those rights to such a society, he shall
designate that to which he entrusts the exercise thereof. He shall notify the
designation in writing to the society, which may not refuse it.
The contract authorizing the broadcasting
of a work on the national territory shall mention the society responsible for
exercising the right to authorize the simultaneous, complete and unchanged
cable retransmission thereof in Member States of the European Community.
The approval provided for in the first
paragraph shall be granted in consideration of:
1°.the professional qualifications of the
directors of the societies, and the means that the societies are able to bring
to bear for the exercise of the rights specified in the first paragraph and the
exploitation of works in their repertoire;
2°.the size of their repertoire;
3°.their observance of the obligations
imposed on them by the provisions of Title II of Book III.
A Decree in Conseil d'Etat shall
lay down the conditions for the grant and revocation of approval. It shall
also, in the case provided in the second paragraph, lay down the procedure for
the designation of the society responsible for the management of the right of
retransmission.
II. Notwithstanding paragraph I, the owner
of the rights may license those rights to an audiovisual communication
enterprise.
The provisions of paragraph I shall not
apply to rights licensed to an audiovisual communication enterprise.
Article L132-20-2
(inserted by Act No. 97-283 of 27 Mars
1997 art. 2 Official Journal of 28 Mars 1997)
Mediators shall be appointed, without
prejudice to the right of the parties to go to court, in order to promote the
settlement of disputes concerning the grant of authorization for the
simultaneous, complete and unchanged cable retransmission of a work.
In the absence of an amicable settlement,
the mediator may propose to the parties the solution that seems appropriate to
him, which the said parties shall be deemed to have accepted if they have not
expressed their opposition in writing within a period of three months.
A Decree in Conseil d'Etat shall
specify the conditions for the application of this Article and lay down the
procedure for the designation of mediators.
Article L132-21
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.
Article L132-22
An entertainment promoter shall ensure
that public performance takes place under technical conditions that guarantee
respect for the author’s intellectual and moral rights.
Section 3: Audiovisual Production Contracts
Article L132-23
The natural or legal person who takes the
initiative and responsibility for making the work shall be deemed the producer
of an audiovisual work.
Article L132-24
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 L111-3, L121-4,
L121-5, L122-1 to L122-7, L123-7, L131-2 to L131-7, L132-4 and L132-7, 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.
Article L132-25
Remuneration shall be due to the authors
for each exploitation mode.
Subject to Article L131-4, 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.
Article L132-26
The author shall guarantee to the producer
the undisturbed exercise of the rights assigned.
Article L132-27
The producer shall be required to exploit
the audiovisual work in conformity with the practice of the trade.
Article L132-28
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.
Article L132-29
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 L113-3.
Article L132-30
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 Act No. 85-98 of
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 coproducers 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 coproducers
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.
Section 4: Commission Contracts for Advertising
Article L132-31
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.
Article L132-32
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
L132-31 shall be determined by a committee chaired by a magistrate of the
judiciary designated by the First President of the Cour de cassation,
and composed, in addition, of one member of the Conseil d'Etat
designated by the Vice President of the Conseil d'Etat, 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.
Article L132-33
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
Chapter III: The payment for
book lending in a library
Article L133-1
(Act n° 2003-517 of
When a work is subject to a publishing
contract for its publication and distribution in a book form, the author may
not object to the lending of copies of this publication by a library open to
the public.
The lending creates a right for payment in
favour of the author in accordance with the conditions set in Article L133-4.
Article L133-2
(Act n° 2003-517 of June 2003, Art.
1, Official Journal of
The payment stipulated in article L133-1
shall be collected by one or several collection and distribution companies of
royalties who are governed by Title II of Book III and licensed by the Minister
responsible for culture.
The licenses stipulated in the first
paragraph shall be delivered in consideration:
-
of the diversity of partners
-
of the professional qualification of the managers
-
of the means that the company puts in place to insure the collection and
distribution of the payment for lending in library;
-
of the equitable representation of authors and publishers among the partners
and within the management organs.
A decree in Conseil d’Etat shall
determine the conditions for the delivery and withdrawal of licences.
Article L133-3
(Act n° 2003-517 of June 2003, Art.
1, Official Journal of June 2003, in force on 1 august 2003)
The payment stipulated in the second
paragraph of Article L133-1 shall comprise two parts.
The first part, borne by the State, shall
be determined on the basis of a fixed contribution paid by each subscribed user
of libraries open to the public for lending with the exception of school
libraries. A decree in Conseil d’Etat shall determine the amount of the
contribution, which may be different for libraries of higher institutions, and
the conditions to determine the number of subscribed users to be taken into
account for the computation of this part.
The second part shall be fixed on the
basis of public price before taxes of books bought by legal persons, mentioned
in the third paragraph (2°) of Article 3 of Act n° 81-766 of
Article L133-4
(Act n° 2003-517 of
The payment for book lending in a library
is divided according to the following criteria.
1° A first part shall be divided on equal
shares between authors and publishers in proportion to the number of books
bought each year by legal persons, mentioned in the third paragraph (2°) of
article 3 of Act n° 81-766 of 10 August 1981 aforementioned, for their
libraries, fixed on the basis of the information that these persons and their
suppliers communicate to the company or companies mentioned in Article L133-2.
2° A second part, which may not exceed
half of the total, shall be allocated to take in charge of a fraction of the
contributions, owed for complementary pension, by the persons mentioned in the
second paragraph of article L382-12 of the Social Security Code.
Article L335-4
(Act No. 94-102 of 5 February 1994
Art. 2 Official Journal of 8 February 1994)
(Act No. 98-536 of 1 July 1998 art.
2 Official Journal of 2 July 1998)
(Order n° 2000-916 of
(Act n° 2003-517 of June 2003, Art.
1, Official Journal of June 2003, in force on 1 august 2003)
Shall be punishable with a two-year prison
term and a fine of €150.000 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 subjected to the same penalties
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 fine laid down in
the first paragraph above the 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 the failure to pay the contribution mentioned in paragraph
three of article L133-3.
Section 5: Pledging the Right to Exploit Software
Article L132-34
(inserted by Act No. 94-361 of 10 May 1994
art. 7 Official Journal of
Notwithstanding the provisions of the Act
of
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 Conseil d'Etat shall
lay down the implementing conditions for this Article.
Chapter I: General Provisions
Article L211-1
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.
Article L211-2
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.
Article L211-3
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.
Article L211-4
(Act No. 97-283 of 27 Mars 1997 art. 11
Official Journal of 28 Mars 1997 in force on 1 July 1995)
The term of the economic rights provided
for in this Title shall be 50 years from January 1 of the calendar year
following that of:
— the performance for performers;
— the first fixation of a sequence of
sounds for phonogram producers, and of a sequence of images with or without
sound for videogram producers;
— the first communication to the public of
the programs referred to in Article L216-1 for audiovisual communication
companies.
However, where a fixation of the
performance, a phonogram or a videogram is included in a communication to the
public during the term defined in the first three paragraphs, the economic
rights of the performer or phonogram or videogram producer shall not expire
until 50 years after January 1 of the calendar year following that of the said
communication to the public.
Article L211-5
(inserted by Act No. 97-283 of 27 Mars
1997 art. 12 Official Journal of 28 Mars 1997 in force on
Subject to the provisions of international
treaties to which
Chapter
II: Rights of Performers
Article L212-1
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.
Article L212-2
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.
Article L212-3
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 L762-1 and L762-2 of the
Labor Code, subject to Article L212-6 of this Code.
Article L212-4
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.
Article L212-5
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 L212-6
Article L762-2 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.
Article L212-7
Contracts concluded prior to
Article L212-8
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.
Article L212-9
Failing agreement concluded in accordance
with Articles L212-4 to L212-7, 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 Cour de cassation and composed, in addition, of one member of the Conseil
d'Etat designated by the Vice President of the Conseil d'Etat, 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.
Article L212-10
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.
Chapter III: Rights of Phonogram Producers
Article L213-1
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 L214-1.
Chapter IV: Provisions Common to Performers and Phonogram Producers
Article L214-1
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 uses of phonograms published for
commercial purposes shall entitle the performers and producers to remuneration
whatever the place of fixation of such phonograms.
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 L131-4.
It shall be shared half each between the
performers and the phonogram producers.
Article L214-2
Subject to the international conventions,
the right to remuneration afforded by Article L214-1 shall be shared between
the performers and phonogram producers for phonograms fixed for the first time
in
Article L214-3
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 L214-1.
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.
Article L214-4
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 Cour de cassation and composed, in
addition, of one member of the Conseil d'Etat designated by the Vice
President of the Conseil d'Etat, 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 L214-1.
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
Article L214-5
The remuneration referred to in Article
L214-1 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.
Chapter V: Rights of Videogram Producers
Article L215-1
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.
Chapter
VI: Rights of Audiovisual Communication Companies
Article L216-1
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 Act No. 86-1067 of
Chapter VII: Provisions Applicable to Satellite Broadcasting and Cable
Retransmission
Article L217-1
(inserted by Act No. 97-283 of 27 Mars
1997 art. 3 Official Journal of 28 Mars 1997)
The rights neighboring on copyright that
relate to the satellite broadcasting of a performer’s performance, a phonogram,
a videogram or the programs of an audiovisual communication enterprise shall be
governed by the provisions of this Code in so far as the broadcasting takes
place under the conditions specified in Articles L122-2-1 and L122-2-2.
In the cases provided for in Article
L122-2-2, those rights may be exercised in relation to the persons referred to
in subparagraphs (i) and (ii) of that Article.
Article L217-2
(inserted by Act No. 97-283 of 27 Mars
1997 art. 3 Official Journal of 28 Mars 1997)
I. Where it is provided for in this Code,
the right to authorize the simultaneous, complete and unchanged cable
retransmission, on the national territory, of a performer’s performance, a
phonogram or a videogram broadcast from a Member State of the European Community
may only be exercised, as from the date of the entry into force of Act No.
97-283 of March 27, 1997, by a royalty collection and distribution. If the
society in question is governed by Title II of Book III, it must be approved
for the purpose by the Minister responsible for culture.
Where the owner of the rights has not
entrusted their management to a royalty collection and distribution society, he
shall designate that to which he entrusts the exercise thereof. He shall notify
the designation in writing to the society, which may not refuse it.
The contract authorizing the broadcasting
on the national territory of a performer’s performance, a phonogram or a
videogram shall mention the society, if any, responsible for exercising the
right to authorize the simultaneous, complete and unchanged cable
retransmission thereof in the Member States of the European Community.
The approval provided for in the first
paragraph shall be granted in consideration of the criteria listed in Article
L132-20-1.
A Decree in Conseil d'Etat shall
lay down the conditions for the grant and revocation of approval. It shall
also, in the case provided for in the second paragraph, lay down the procedure
for the designation of the society responsible for the management of the right
of retransmission.
II. Notwithstanding paragraph I, the owner
of the rights may license those rights to an audiovisual communication
enterprise.
The provisions of paragraph I shall not
apply to rights licensed to an audiovisual communication enterprise.
Article L217-3
(inserted by Act No. 97-283 of 27 Mars
1997 art. 3 Official Journal of 28 Mars 1997)
Mediators shall be appointed, without
prejudice to the right of the parties to go to court, in order to promote the
settlement of disputes concerning the grant of authorization, where required,
for the simultaneous, complete and unchanged cable retransmission of subject
matter protected by the rights laid down in this Title.
In the absence of an amicable settlement,
the mediator may propose to the parties the solution which seems appropriate to
him, which the parties shall be deemed to have accepted if they have not
expressed their opposition in writing within a period of three months.
A Decree in Conseil d'Etat shall
specify the conditions for the application of this Article and lay down the
procedure for the designation of mediators.
Article L311-1
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
(Act No. 2001-624 of 17 July 2001 art. 15
I Official Journal of
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 L122-5 and item 2 of Article L211-3.
The authors and publishers of works fixed on any other
medium are also entitled to remuneration for the reproduction of those works
made in accordance with item 2 of Article L122-5 and item 2 of Article L211-3,
on a digital recording medium.
Article L311-2
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
(Act No. 2001-624 of 17 July 2001 art. 15
II Official Journal of
Subject to the international conventions, the right to
remuneration referred to in Articles L214-1 and in the first paragraph of
article L311-1, shall be shared between the authors, performers, phonogram or
videogram producers in respect of phonograms and videograms fixed for the first
time in
Article L311-3
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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 L131-4.
Article L311-4
(Act No. 92-677 of 17 July 1992 art. 119
Official Journal of 19 July 1992 in force on 1 January 1993)
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
(Act No. 2001-624 of 17 July 2001 art. 15
III Official Journal of
The remuneration provided for in Article L.311-3 shall
be paid by the manufacturer, the importer or the person making an
intra-Community acquisition, within the meaning of paragraph 3 of point I of
Article 256 bis of the Code général des impôts, of recording mediums that may
be used for reproduction of works for private use, 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.
Article L311-5
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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
Article L311-6
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
The remuneration referred to in Article
L311-1 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.
Article L311-7
(Act No. 95-4 of 3 January 1995 art. 2
Official Journal of 4 January 1995)
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
(Act No. 2001-624 of 17 July 2001 art. 15
IV Official Journal of
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 of the works
referred to in Article L311-1 shall belong in equal parts to the authors and
the publishers.
Article L311-8
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
(Act No. 2001-624 of 17 July 2001 art. 15
V Official Journal of
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;
2° bis. The publishers of works published on digital
mediums;
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.
Sole Chapter
Article L321-1
(Act No. 97-283 of 27 Mars 1997 art. 4 I
Official Journal of 28 Mars 1997)
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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.
Actions seeking the payment of the
royalties charged by such civil law companies shall be statute-barred after ten
years from the date on which they were charged, that period being suspended
until the date of their allocation.
Article L321-2
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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.
Article L321-3
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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 one of these societies.
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.
Article L321-4
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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 Act 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 Act No. 66-537 of July 24, 1966,
shall be of application.
Article 29 of Act No. 84-148 of March 1,
1984, on the Prevention and Amicable Settlement of Difficulties in Enterprises
shall be of application.
Article L321-5
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
(Act No. 2000-719 of 1 August 2000 art. 12
Official Journal of 2 August 2000)
The right to communication provided for in Article
1855 of the Civil Code shall apply to royalty collection and distribution
societies, but without a member being able to obtain communication of the
amount of royalties distributed on an individual basis to any other rightholder
than himself. A decree by the Conseil d'Etat shall determine the conditions of
exercise of this right.
Article L321-6
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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.
Article L321-7
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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.
Article L321-8
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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.
Article L321-9
(Act No. 97-283 of 27 Mars 1997 art. 4 II
Official Journal of 28 Mars 1997)
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
(Act No. 2000-719 of 1 August 2000 art. 11
Official Journal of
These societies shall use, for action to assist
creation and promote live entertainment and for training schemes for performers
:
1°. 25% of amounts obtained from the remuneration for
private copying;
2°. All of the amounts collected in application of Articles
L. 122-10, L. 132-20-1, L. 214-1, L. 217-2 and L. 311-1 that have not been
allocated either in application of the international conventions to which
France is a party, or because their recipients could not be identified or found
prior by or before the expiry of the period provided for in the last paragraph
of Article L. 321-1.
They may use for the said action all or part of the
amounts referred to under item 2 as from the end of the fifth year following
the date of their intended allocation, without prejudice to claims for payment
of non-statute-barred royalties. 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, deciding 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.
The amount and use of these sums of money
shall be the subject of a yearly report by the collecting societies to the
Minister responsible for culture. The auditor shall verify the information
contained in that report for honesty and consistency with the accounting
documents of the society. He shall draw up a special report to that end.
Article L321-10
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
The societies that collect and distribute the
royalties of phonogram and videogram producers and performers shall have the
faculty, within the limits of the instructions given to them by all or part of
the members, or by foreign bodies having the same purpose, to collectively
exercise the rights afforded by Articles L213-1 and L215-1 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.
Article L321-11
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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.
Article L321-12
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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.
Article L321-13
(inserted by Act No. 2000-719 of 1 August 2000
art. 12 Official Journal of
- a conseiller maître to the Cour des comptes,
chairman, designated by the premier président of the Cour des comptes;
- a conseiller d'Etat, designated by the
vice-président of the Conseil d'Etat;
- a conseiller to the Cour de cassation, designated by
the premier président of the Cour de cassation;
- a member of the Inspection générale des finances,
designated by the Minister responsible for finance;
- a member of the Inspection générale de
l'administration des affaires culturelles, designated by the Minister
responsible for culture;
The committee may be assisted by rapporteurs
designated from amongst the members of the Conseil d'Etat and the body of
counsellors of administrative courts and administrative courts of appeal, the
judges of the Cour de cassation and of the courts and tribunals, the judges of
the Cour des comptes and of the Chambres régionales des comptes, the members of
the Inspection générale des finances and the members of the body of
administrateurs civils. It may also benefit from civil servants made available
to it and seek the assistance of experts designated by its chairman.
II. – The committee audits the accounts and the management
of the royalty collection and distribution societies as well as those of their
subsidiaries and any organisations controlled by them.
To this end, the directors of these societies,
subsidiaries and organisations are under the duty to lend it their assistance,
communicate any documents to it and answer any request for information required
for the performance of its mission. For operations involving information
technology, the right of communication supposes access to software and data, as
well as the right to request their transcription by any suitable processing
method in the documents directly usable for auditing purposes.
The committee may request the auditor to provide it
with information on the collecting societies audited by him. In this case
the auditor will be released from his duty of professional secrecy as regards
the committee members.
It may carry out its audit of the societies or
organisations mentioned in the first sentence of this paragraph [item II] based
on records or on the spot.
III. – The supervising committee of royalty collection
and distribution societies shall present an annual report to Parliament, to
Government and to the general assemblies of members of the royalty collection
and distribution societies.
IV. – Failure by any director of a society or of an
organisation subject to the control of the supervising committee of royalty
collection and distribution societies to satisfy information requests made by
the committee, the hindrance in any way of the committee in the performance of
its mission or the intentional communication to it of inaccurate information
shall be punishable by a prison term of one year and a fine of FRF 100,000.
V. – The committee shall be headquartered in the
premises of the Cour des comptes, which shall ensure its secretariat.
VI. - A decree of Conseil d'Etat shall determine the
organisation and the operation of the committee, as well the procedures
applicable before it.
Chapter I: General Provisions
Article L331-1
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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.
Article L331-2
(Act No. 94-361 of 10 May 1994 art. 10 I
Official Journal of 11 May 1994)
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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 Act 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 Conseil d'Etat.
Article L331-3
(Act No. 94-361 of 10 May 1994 art. 10 II
Official Journal of 11 May 1994)
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
The
Article L331-4
(inserted by Act No. 98-536 of 1 July 1998 art.
6 Official Journal of
The rights mentioned in part one of this Code shall
not prevail over any acts necessary for the accomplishment of a jurisdictional
or administrative procedure provided by law, or undertaken for public safety
reasons.
Chapter
II: Infringement Seizure
Article L332-1
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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.
When issuing the orders referred to above,
the president of the first instance court may order the person requesting
seizure to provide prior adequate security.
Article L332-2
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
Within 30 days of the report of seizure
referred to in the first paragraph of Article L332-1 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.
Article L332-3
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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.
Article L332-4
(Act No. 98-536 of 1 July 1998 art. 4 and
art. 7 Official Journal of 2 July 1998)
In respect of software and databases, infringement
seizures shall be carried out under an order issued, upon application, by the
président of the court of first instance. The président shall authorise, if
required, an actual seizure.
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 invalid.
In addition, the police commissioners
shall be required, at the request of any holder of rights over software or a
database, to carry out a descriptive seizure of the infringing software or
database, which may take the physical form of a copy.
Article L333-1
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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.
Article L333-2
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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.
Article L333-3
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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.
Article L333-4
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
The provisions under this Chapter shall
not prevent seizure ordered under the provisions of the Civil Code relating to
unpaid maintenance.
Chapter IV: Resale Royalty Right
Article L334-1
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
In the event of infringement of Article
L122-8, the acquirer and the law officials may be pronounced jointly liable for
damages in favor of the beneficiaries of the resale royalty right.
Chapter V: Penal Provisions
Article L335-1
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
As soon as offenses under Article L335-4
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.
Article L335-2
(Act No. 94-102 of 5 February 1994 Art. 1 Official
Journal of 8 February 1994)
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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
The sale, exportation and importation of
infringing works shall be subject to the same penalties.
Article L335-3
(Act No. 94-361 of 10 May 1994 art. 8
Official Journal of 11 May 1994)
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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 L122-6 shall also constitute an
infringement.
Article L335-4
(Act No. 94-102 of 5 February 1994 Art. 2 Official
Journal of 8 February 1994)
(Act No. 98-536 of 1 July 1998 art. 2
Official Journal of 2 July 1998)
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 FRF 1,000,000.
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.
Article L335-5
(Act No. 94-102 of 5 February 1994 Art. 3 Official
Journal of 8 February 1994)
(Act No. 98-536 of 1 July 1998 art. 3
Official Journal of 2 July 1998)
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 L122-14-4 and L122-14-5 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 FRF 25,000.
Article L335-6
(Act No.92-1336 of 16 December 1992 art. 331 Official Journal of 23
December 1992 in force on 1 March 1994)
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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 131-35 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.
Article L335-7
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
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.
Article L335-8
(Act No.92-1336 of 16 December 1992 art. 203 Official
Journal of 23 December 1992 in force on 1 March 1994)
(Act No.94-102 of 5 February 1994 Art. 4 Official
Journal of 8 February 1994)
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
Legal persons may be declared penally
liable, in accordance with Article 121-2 of the Penal Code, for the
infringements defined in Articles L335-2 to L335-4 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.
The prohibition referred to in item 2 of
Article 131-39 concerns the activity in the exercise of which or on the
occasion of the exercise of which the infringement was committed.
Article L335-9
(Act No.94-102 of 5 February 1994 Art. 5 Official
Journal of 8 February 1994)
(Act No. 98-536 of 1 July 1998 art. 4
Official Journal of 2 July 1998)
In the event of repetition of the offenses
defined in Articles L335-2 to L335-4, or if the offender is or has been
contractually bound to the aggrieved party, the penalties involved shall be
doubled.
Article L335-10
(Act No.94-102 of 5 February 1994
Art. 5 Official Journal of 8 February 1994)
(Act No. 98-536 of 1 July 1998 art.
4 Official Journal of 2 July 1998)
(Act n° 2003-706 of
The customs administration may, at the
written request of an owner of copyright or a neighbouring right, which request
shall be accompanied by proof of his right as provided by Decree in Conseil
d'Etat, 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 L332-1 have been taken;
— or that he has instituted proceedings
before the civil court or the court of misdemeanours and has provided the
necessary guarantees to cover his liability in the event of the infringement
claim being eventually considered unfounded.
For the purpose of the institution of the
legal proceedings referred to in the foregoing paragraph, the plaintiff may
require the customs administration to communicate the names and addresses of
the sender, the importer and the consignee of the goods withheld, or of the
holder thereof, and also the quantity thereof, notwithstanding the provisions
of Article 59bis of the Customs Code concerning the professional secrecy to
which officials of the customs administration are bound.
The withholding mentioned in the first
paragraph shall not concern the goods that have European status, which are
legally produced or released for free circulation in the member state of the
European Community and intended, having entered by a Customs territory as
defined in the first article of Customs Code, to be released in the market of
another member state of the European Community, to be legally commercialised.
Chapter
I: Field of application
Article L341-1
(inserted by Act No. 98-536 of 1 July 1998 art. 5
Official Journal of
The producer of a database, understood as the person
who takes the initiative and the risk of the corresponding investments,
benefits from protection of the contents of the database when its constitution,
verification or presentation shows that there has been a substantial financial,
technical or human investment.
This protection is independent and applies without
prejudice to the protection of copyright or any other right over the database
or one of its component elements.
Article L341-2
(inserted by Act No. 98-536 of 1 July 1998 art. 5
Official Journal of
Shall be eligible for the benefit of this Title:
1°. Producers of databases, nationals of a
2°. Companies and enterprises formed in accordance
with the law of a Member State and having their registered office, central
administration or principal place of business within the Community or a State
party to the Agreement on the European Economic Area; however, where such a
company or enterprise has only its statutory head office in the territory of
such State, its operations must be genuinely linked on an ongoing basis with
either the economy of this Member State or State within the European Economic
Area.
Producers of databases who do not satisfy the
conditions indicated above shall be eligible for protection under this Title
where a special agreement has between concluded between the State of which they
are a national and the Council of the European Community.
Chapter
II: Scope of protection
Article L342-1
(inserted by Act No. 98-536 of 1 July 1998 art. 5
Official Journal of
The producer of a database has the right to prohibit:
1°. The extraction, by the permanent or temporary transfer of all or a substantial
part, qualitatively or quantitatively, of the contents of a database to another
medium, by any means or in any form;
2°. The reuse, by making available to the public all or a substantial part,
qualitatively or quantitatively, of the contents of a database, in any form
whatsoever.
These rights can be transferred, assigned or licensed.
Public lending is not an act of extraction or reuse.
Article L342-2
(inserted by Act No. 98-536 of 1 July 1998 art. 5
Official Journal of
The producer may also prohibit the repeated and
systematic extraction or reuse of insubstantial parts, qualitatively or
quantitatively, of the contents of the database when such operations manifestly
go beyond the conditions of normal use of the database.
Article L342-3
(inserted by Act No. 98-536 of 1 July 1998 art. 5
Official Journal of
When a database is made available to the public by the
rightholder, he may not prohibit:
1°. The extraction or the reuse of an insubstantial part, evaluated
qualitatively or quantitatively, of the contents of the database, by a person
having lawful access;
2°. The extraction for private purposes of a qualitatively or quantitatively
substantial part of the contents of a non-electronic database, subject to
compliance with the copyrights or neighbouring rights over the works or
materials incorporated into the database.
Any provision that is contrary to item 1° above shall be null and void.
Article L342-4
(inserted by Act No. 98-536 of 1 July 1998 art. 5
Official Journal of
The first sale in the territory of a
However, online transmission of a database shall not exhaust the right of the
producer to control resale of a physical copy or this database or a part
thereof in any of the Member States.
Article L342-5
(inserted by Act No. 98-536 of 1 July 1998 art. 5
Official Journal of
The rights provided for in Article L. 342-1 shall
become effective from the date of completion of the production of the
database. They shall expire fifteen years from the 1st of January of the
calendar year following that of completion.
When a database has been made available to the public before the expiry of the
period set forth in the paragraph above, the rights shall expire fifteen years
from the 1st of January of the calendar year following the date when the
database was first made available to the public.
However, in case a protected database is the subject of a new substantial
investment, its protection shall expire fifteen years from the 1st of January
of the calendar year following that in which this new investment was made.
Article L343-1
(inserted by Act No. 98-536 of 1 July 1998 art. 5
Official Journal of
The infringement of the rights of the producer of a
database, as defined in Article L. 342-1, shall be punishable by a two-year
prison term and a fine of FRF 1,000,000.
Article L343-2
(inserted by Act No. 98-536 of 1 July 1998 art. 5
Official Journal of
Legal persons may be declared penally liable, in
accordance with Article 121-2 of the Penal Code for the infringements defined
in Article L. 343-1. Legal persons may incur the following penalties:
1°. A fine determined in accordance with Article 131-38 of the Penal Code;
2°. The penalties provided for in Article 131-39 of same; the prohibition
provided for in item 2 of this Article concerns the activity in the exercise of
which or on the occasion of the exercise of which the infringement was
committed.
Article L343-3
(inserted by Act No. 98-536 of 1 July 1998 art. 5
Official Journal of
In the event of the repetition of the offences defined
in Article L. 343-1, or if the offender is or has been contractually bound to
the aggrieved party, the penalties involved shall be doubled.
Guilty parties may, in addition, be deprived for a period not exceeding five
years, of the right to elect and be elected to commercial courts, chamber of
commerce and industry and professional chambers and to joint labour dispute
conciliation boards.
Article L343-4
(inserted by Act No. 98-536 of 1 July 1998 art. 5
Official Journal of
Apart from the reports drawn up by police
investigators, the proof of the existence of the infringements defined in this
Chapter may be provided by the statement of a sworn agent designated by
professional organisations of producers. These agents shall be approved by the
Minister responsible for culture under the same conditions as those provided
for agents under Article L. 331-2.
Chapter I: National Institute of Industrial Property
Article L411-1
The National Institute of Industrial
Property is a public establishment possessing legal personality and financial
autonomy, under the authority of the Minister for Industry.
The tasks of that establishment shall be:
1°.to centralize and disseminate all
information required for the protection of innovations and for the registration
of enterprises; to undertake activities to promote awareness and provide
training in these fields;
2°.to apply the laws and regulations with
regard to industrial property, the Register of Commerce and Companies and the
Directory of Trades; to that end, the Institute shall be responsible for
receiving the filing of applications for industrial property titles or titles
ancillary to industrial property and for monitoring their maintenance; it shall
centralize the Register of Commerce and Companies, the Directory of Trades and
the Official Bulletin of Civil and Commercial Announcements; it shall
disseminate the technical, commercial and financial information contained in
industrial property titles and centralized instruments of statutory
publication;
3°.to take all initiatives with a view to
a standing adaptation of national and international law to the needs of
innovators and enterprises; for that purpose, it shall propose to the Minister
responsible for industrial property any reform it considers appropriate in such
matters; it shall participate in elaborating international agreements and in
representing France in the relevant international organizations.
Article L411-2
The receipts of the Institute shall be
constituted by any fees established in compliance with Article 5 of Ordinance
59-2 of
The audit of the execution of the
Institute’s budget shall be effected a posteriori in compliance with the
conditions laid down by decree in Conseil d'Etat.
Article L411-3
The administrative and financial
organization of the Institute shall be laid down by decree in Conseil d'Etat.
Article L411-4
The Director of the National Institute of
Industrial Property shall take the decisions provided for by this Code when
granting, rejecting or maintaining industrial property titles.
When exercising that responsibility, he
shall not be subject to the supervisory authority. The Courts of Appeal
designated by regulation shall be directly competent to hear appeals from his
decisions. They shall take their decisions on such appeals after hearing the
public prosecutor and the Director of the National Institute of Industrial
Property. Both the applicant and the Director of the National Institute of
Industrial Property may request that a decision on appeal be set aside.
Article L411-5
The decisions to reject referred to in the
first paragraph of Article L411-4 shall be accompanied by reasons.
The same shall apply to decisions
accepting opposition filed under Article L. 712-4 or requests that revocation
be lifted with regard to a trademark or service mark.
They shall be notified to the applicant in
accordance with the conditions and time limits laid down by regulation.
Chapter II: Committee for the Protection of New Plant Varieties
Article L412-1
The Committee for the Protection of New Plant Varieties, placed under
the authority of the Minister of Agriculture, is chaired by a magistrate
and composed of a number of persons, from both the public and the private
sectors, qualified by reason of their theoretical or practical knowledge of
genetics, botany and agronomy. This Committee shall issue
the certificate referred to in Article L623-4.
Chapter I: Entry in the List of Persons Qualified with Respect to
Industrial Property
Article L421-1
The Director of the National Institute of
Industrial Property shall draw up each year a list of the persons qualified
with respect to industrial property.
The list shall be published.
The persons entered in the above-mentioned
list may exercise their activity as employees of an enterprise or as a liberal
profession, either individually or as a group, or as employees of a person
exercising his activity as a liberal professional.
The persons included, at the date of
November 26, 1990, in the list of persons qualified with respect to patents for
invention shall be entered automatically in the list referred to in the first
paragraph, subject to satisfying the conditions of good character laid down in
Article L421-2.
Article L421-2
No person may be entered in the list
referred to in the foregoing Article unless he is of good character and unless
he satisfies the prescribed conditions with respect to professional
qualifications and practice.
The entry shall be accompanied by a notice
of specialization as a function of the qualifications held and the professional
experience acquired.
Chapter II: Conditions for Exercising the Profession of Industrial
Property Attorney
Article L422-1
(Act No. 92-1336 of 16 december 1992 art.
334 Official Journal of 23 december 1992 in force on 1 March 1994)
The calling of an industrial property
attorney shall be to offer his services to the public, in an habitual and
remunerated manner, for advising, assisting or representing others with a view
to obtaining, or maintaining, exploiting or defending industrial property
rights, related rights and rights bearing on any connected matter.
The services referred to in the foregoing
paragraph shall include legal consultation and the drafting of private deeds.
No person may use the title of industrial
property attorney, a title that is equivalent or a title that is confusingly
similar, unless he is entered in the list of industrial property attorneys
drawn up by the Director of the National Institute of Industrial Property.
Infringements of the provisions of the
foregoing paragraph shall be punishable by the penalties laid down by in the
second paragraph of Article 259 of the Penal Code.
No person may be entered in the list of
industrial property attorneys unless he is entered in the list provided for in
Article L421-1 and he exercises the profession in compliance with Article
L422-6.
Entry shall be accompanied by a notice of
specialization as a function of the qualifications held and the professional
experience acquired.
Article L422-2
Persons entitled to the title of patent
attorney on the date of entry into force of Act No. 90-1052 of
Article L422-3
Any company exercising the activities
referred to in Article L422-1 on the date of entry into force of the
above-mentioned Act No. 90-1052 of
In such case, the condition laid down in
item (b) of Article L422-7 shall not apply.
The application must be submitted, on pain
of preclusion, two years at the latest after entry into force of the
above-mentioned Act No. 90-1052 of
Article L422-4
(Order No. 2001-670 of 25 July 2001 art. 4
I Official Journal of
Persons wishing to be represented in proceedings
before the National Institute of Industrial Property may only be represented,
for acts where such is necessitated by the technical nature of the subject
matter, by industrial property attorneys whose specialisation, determined in
accordance with the final paragraph of Article L. 422-1, corresponds to such
act.
The provisions of the foregoing paragraph shall not
preclude the faculty of using the services of a lawyer, of a company or public
organisation with which the applicant is contractually bound, or the services
of a specialised professional organisation, or those of a professional
established within the territory of a Member State of the European Community or
of a State party to the Agreement on the European Economic Area acting on an
occasional basis and authorised to represent persons before the central
industrial property office in this State.
Article L422-5
Any person carrying out the activities
referred to in the first paragraph of Article L422-1 on November 26, 1990, may,
notwithstanding the provisions of Article L422-4, represent persons referred to
in the first paragraph of that Article in those cases referred to in that
paragraph on condition that they are entered in a special list drawn up by the
Director of the National Institute of Industrial Property.
Entry shall be automatic, subject to the
proviso laid down in the final paragraph of this Article, on condition that the
person concerned has requested entry by means of a declaration made to the
Director of the Institute.
The declaration must be made, on pain of
preclusion, two years at the latest after the entry into force of the above-mentioned
Act No. 90-1052 of
No person may be entered in the list
provided for in the first paragraph if he is not of good character.
Article L422-6
An industrial property attorney shall
exercise his profession either individually or in a group or as the employee of
another industrial property attorney.
Article L422-7
Where the profession of industrial
property attorney is exercised as a company it may take the form of a
professional civil law company or a company constituted in some other way. In
the latter case, it shall be required that:
a)The chairman of the administrative
board, the directors general, the members of the board, the sole director
general and the manager or managers, as also the majority of members of the administrative
board or the supervisory board, be qualified as industrial property attorneys;
b)The industrial property attorneys hold
more than one half of the capital and of the voting rights;
c)The acceptance of any new partner be
subject to prior approval, as appropriate, of the administrative board, the
supervisory board or of the manager or managers.
The provisions of the first two paragraphs
of Article 93, of Articles 107 and 142 of Act No. 66-537 of July 24, 1966, on
commercial companies, shall apply neither to members of the administrative
board nor to members of the supervisory board of companies of industrial
property attorneys.
Where the profession of industrial
property attorney is exercised by a company, the company is to be entered, in
addition to entry of the attorneys as natural persons, in a special section of
the list provided for in Article L422-1.
Article L422-8
Every industrial property attorney must
supply evidence that he has insurance covering his professional civil liability
with regard to negligence or errors committed in the exercise of his functions
and a guarantee specially devoted to the reimbursement of funds, effects or
objects of value received.
Article L422-9
There is hereby instituted a National
Society of Industrial Property Attorneys, possessing legal personality, under
the authority of the National Institute of Industrial Property, in order to
represent industrial property attorneys before the public authorities, to
defend their professional interests and to ensure respect for the code of
conduct.
Article L422-10
Any natural or legal person exercising the
profession of industrial property attorney who is guilty either of an
infringement of the rules under this Title or the texts adopted for its
application, or of acts contrary to probity, honor or scruples, even if outside
his professional sphere, may incur one of the following disciplinary measures:
warning, reprimand, suspension or striking off.
The penalties shall be pronounced by the
Disciplinary Board of the National Society of Industrial Property Attorneys
chaired by a magistrate of the judiciary.
Chapter III: Miscellaneous Provisions
Article L423-1
It shall be prohibited for any natural or
legal person to canvass with a view to representing the persons concerned, to
giving consultations or to drawing up industrial property law acts. This
prohibition shall not extend, however, to offers of services made to
professionals or enterprises through the post under conditions laid down by
regulation.
Any infringement of the provisions of the
foregoing paragraph shall be liable to the penalties laid down in Article 5 of
Act No. 72-1137 of
All advertising with regard to the
activities referred to in that same paragraph shall be subject to compliance
with the conditions laid down by regulation.
Article L423-2
Decrees in Conseil d'Etat shall lay
down the conditions for implementing this Title.
They shall stipulate, in particular:
a)The conditions for implementing Chapter
I;
b)The conditions for implementing Article
L422-1;
c)The conditions for implementing Article
L422-4;
d)The conditions for implementing Article
L422-5;
e)The conditions under which the
obligation referred to in item (b) of Article L422-7 may be waived to permit
interprofessional grouping with other providers of services involved in the
innovation process;
f)The code of conduct applicable to
industrial property attorneys;
g)The organization and statutes of the
National Society of Industrial Property Attorneys together with the rules for
determining the amount of its membership fees.
Section
1: Subject of Protection
Article L511-1
(Order No. 2001-670 of 25 July 2001 art. 1
Official Journal of
The appearance of the whole or a part of the product,
resulting from the features of, and in particular its lines, contours, colours,
shape, texture or materials, is eligible for protection as a design or model.
These features can be those of the product itself or its ornamentation.
Is deemed to be a product any industrial or handicraft
item, including inter alia parts intended to be assembled into a complex
product, packaging, get-up, graphic symbols and typographic typefaces, but
excluding computer programs.
Article L511-2
(Order No. 2001-670 of 25 July 2001 art. 1
Official Journal of
A design or model shall only be protected if it is new
and has individual character.
Article L511-3
(Order No. 2001-670 of 25 July 2001 art. 1
Official Journal of
A design or model shall be considered to be new if, on
the date of the filing of the application for registration or on the date of
priority claimed, no identical design or model has been disclosed. Designs or
models shall be deemed to be identical if their features differ only in
immaterial details.
Article L511-4
(Order No. 2001-670 of 25 July 2001 art. 1
Official Journal of
A design or model has individual character if the
overall visual impression it produces on the informed observer differs from
that produced by any design or model disclosed before the date of the filing of
the application for registration or before the date of priority claimed.
In assessing individual character, the degree of
freedom of the creator in developing the design or the model shall be taken
into consideration.
Article L511-5
(Order No. 2001-670 of 25 July 2001 art. 1
Official Journal of
The design or model of a part of a complex product is
only considered to be new and to present an individual character to the extent
that:
a) The component part, once it has been incorporated
in the complex product, remains visible during normal use of the latter by the
end user, excluding maintenance, servicing or repair work;
b) Those visible features of the component part fulfil
in themselves the requirements as to novelty and individual character.
Is considered to be a complex product a product
composed of multiple components which can be replaced.
Article L511-6
(Order No. 2001-670 of 25 July 2001 art. 1
Official Journal of
A design or model shall be deemed to have been
disclosed if it has been made available to the public through publication, use,
or by any other means. No disclosure has taken place if the design or the model
could not reasonably have become known, according to the normal course of
business in the sector concerned, by professionals operating in the European
Community, before the date of filing of an application for registration or
before the date of priority claimed.
The design or model shall not, however, be deemed to
have been disclosed to the public due to the sole fact that it has been
disclosed to a third party under an explicit or implicit condition of
confidentiality.
If this disclosure takes place within the twelve
months preceding the date of the filing of the application or the date of
priority claimed, it shall not be taken into consideration:
a) If the design or the model has been disclosed by
the creator, his successor-in-title, or by any third person as a result of
information provided or action taken by the creator or his successor-in-title;
b) Or if the design or model has been disclosed as a
result of unfair behaviour against the creator or his successor-in-title.
The twelve-month period referred to in this Article
shall not apply to disclosure having occurred before
Article L511-7
(Order No. 2001-670 of 25 July 2001 art. 1
Official Journal of
Designs or models that are contrary to public policy
or accepted principles of morality are not protected.
Article L511-8
(inserted by Order No. 2001-670 of 25 July
2001 art. 1 Official Journal of
Shall not be eligible for protection:
1°. The appearance of a product whose features are
solely dictated by the technical function of the product;
2°. The appearance of a product whose exact form and
dimension must necessarily be reproduced in order to allow it to be
mechanically associated to another product by being placed against it,
connected to it or being placed inside or outside of it in a manner allowing
both of these products to perform its function.
However, a design or a model serving the purpose of
allowing multiple assemblies or connections of mutually interchangeable
products within a system whose design is modular shall be eligible for
protection.
Section 2: Benefit of the protection
Article L511-9
(inserted by Order No. 2001-670 of 25 July 2001 art. 1
Official Journal of
The protection of the design or model conferred by the
provisions of this Book is acquired by registration. It is granted to the
creator or to his successor-in-title.
The applicant for registration is, failing proof to
the contrary, considered to the beneficiary of this protection.
Article L511-10
(inserted by Order No. 2001-670 of 25 July 2001 art. 1
Official Journal of
When a design or a model has been deposited, either
fraudulently with respect to the rights of another person or in violation of a
statutory or contractual obligation, any person who believes he has a right in
the design or model may claim ownership by bringing legal proceedings before a
court.
Claims in ownership are barred three years from the
publication of the registration of the design or model or, in case of bad
faith, upon the date of publication of the registration or of the acquisition
of the design or model, following the expiry of the protection period.
Article L511-11
(inserted by Order No. 2001-670 of 25 July 2001 art. 1
Official Journal of
Subject to the provisions of the international
treaties to which France is a party, a foreigner who has neither his place of
business nor residence on the territory of a Member State of the European
Community or of a State party to the Agreement on the European Economic Area
shall benefit from the provisions of this Book, provided his country of origin
affords reciprocal protection to French designs or models.
Section 1: Application for filing
Article L512-1
(Order No. 2001-670 of 25 July 2001 art. 1
Official Journal of
The application for registration shall be filed, on
pain of invalidity, with the National Institute of Industrial Property when the
place of residence or the registered office of the applicant is situated in
Where the place of residence or the registered office
of the applicant is situated outside Paris but in France, the applicant may, at
his choice, file the application for registration with the National Institute
of Industrial Property or with the registry of the Commercial Court or, in the
absence of a Commercial Court, with the registry of the court ruling in
commercial matters.
When the application for registration is filed with the registry of a court, the latter shall transmit it to the National
Institute of Industrial Property.
Article L512-2
(Act No. 94-102 of 5 February 1994 Art. 21
Official Journal of 8 February 1994)
(Order No. 2001-670 of 25 July 2001 art. 4
I Official Journal of
The filing shall be made in the form and
under the conditions laid down by this Book.
To be admissible, it must comprise an
identification of the applicant and a reproduction of the design or designs
concerned.
The filing shall be refused if examination
shows:
a) That it is not presented under the
prescribed conditions or in the prescribed form;
b) That its publication would be contrary
to morality or public policy.
However, refusal may not be pronounced
without the applicant having at first been invited, as appropriate, to
regularize his filing or to submit his comments.
In the case of designs pertaining to
industries that frequently change the form and presentation of their goods,
filing may be effected in a simplified form according to conditions laid down
by decree in Conseil d'Etat. The lapse of the rights deriving from such
a filing shall be pronounced where the said filing has not, six months at the
most prior to the planned date for the publication thereof, been brought into
conformity with the general requirements laid down in the decree referred to in
the foregoing paragraph.
Article L512-3
(Order No. 2001-670 of 25 July 2001 art. 1
Official Journal of
Where the applicant or the owner of a
filing has not complied with the prescribed time limits, any revocation of
rights he may have incurred may be lifted if he can provide legitimate reasons.
Section
2: Nullity of the filing
Article L512-4
(Order No. 2001-670 of 25 July 2001 art. 1
Official Journal of
The registration of a design or model shall be
declared invalid by decision of the courts:
a) If not in compliance with the provisions of
Articles L. 511-1 to L. 511-8;
b) If its holder was not able to benefit from the
protection under Article L. 511-9;
c) If the design or model infringes the rights
attached to an earlier design or model which has been disclosed to the public
after the date of presentation of the application for registration or, if
priority is claimed, after the date of priority, and which has been protected
since an earlier date by the registration of a Community design or model, a
French or international design or model designating France, or by an
application for registration of such designs or models;
d) If it infringes the copyright of a third party;
e) If this design or model uses an earlier protected
distinctive sign, without the authorisation of its holder.
The grounds for invalidity set forth in items b, c, d
and e may only be invoked by the person vested with the right being asserted.
The public prosecutor may file invalidity proceedings
ex officio against a design or model, regardless of the causes of invalidity.
Article L512-5
(inserted by Order No. 2001-670 of 25 July 2001 art. 1
Official Journal of
If the grounds for invalidity only partially affect
the design or the model, the registration may be maintained in a modified form
if, in that form, the design or model meets the requirements for protection and
if its identity is retained.
Article L512-6
(inserted by Order No. 2001-670 of 25 July 2001 art. 1
Official Journal of
The court decision declaring the design or the model
to be partially or wholly invalid shall have an absolute effect. It shall be
recorded in the national register referred to in Article L. 513-3.
Chapter III: Rights conferred by the filing
Article L513-1
(Order No. 2001-670 of 25 July 2001 art. 1
Official Journal of
Registration takes effect, as from the date of the
filing of the application, for a period of five years, which may be extended by
periods of five years within a maximum limit of twenty-five years.
Designs or models deposited before
Article L513-2
(inserted by Order No. 2001-670 of 25 July 2001 art. 1
Official Journal of
Without prejudice to rights resulting from the application of other legislative provisions, including inter alia, from Books I and III of t