Under  French  law

Authors’ rights and their work

Protecting creation and cultural diversity

In France, authors’ works enjoy sophisticated legal protection, to an extent which up to fairly recently had no equivalent elsewhere in the world.

Moral right

Author’s rights enshrine the very strong link existing between authors and their creation as their personal expression by granting the authors moral prerogatives on their works.

Characteristics of moral rights
These rights are directly attached to the author as a person, they are perpetual, inalienable and imprescriptible (art. L.121-1 CPI).

  • Perpetual right
    Moral rights remain applicable after the author’s death and even beyond extinction of the economic rights.  The author’s heirs may thus exercise these rights, even when the work has fallen into the public domain.
  • Inalienable right
    The author shall in no case whatsoever transfer the exercise of his/her moral right.  No waiver to this right can be included into a contract otherwise it would nullify said contract.
  • Imprescriptible right
    For as long as the work exists, the associated moral right may be exercised by its author or successors, even if the work is not being used.
  • Unseizable right
    If a work already created, and the proceeds of its exploitation, are liable to be seized by creditors, as the case may be, the latter may not demand that said work be divulged for the purpose of recovering the moneys due by its author.

Author’s prerogatives
Several prerogatives are associated with this moral right.  The French code of intellectual property (CPI) states that “An author shall enjoy the right to respect for his/her name, authorship and work “(art. L.121-1 CPI).

  • Right of Disclosure
    By stating that the author alone has the right to divulge his/her work, the Code of intellectual property acknowledges that s/he alone is entitled to make or not his/her work public (except in the special case of audiovisual works).  This is a very strong claim in that no exploitation is possible for as long as the author has not accepted disclosure.  The terms and exploitation media of such disclosure to the public are also at the discretion of the author (art. L.121-2 CPI).
  • Authorship
    The regulator authorises any author of a work to associate his/her name with such work.  Authors, however, are entitled to remain anonymous or to use a pseudonym.
  • Respect for the work’s integrity
    The author may object to any alteration, suppression or addition liable to modify the original work, whether it is in form or spirit.
  • Right to withdrawal or reconsider
    Subject to fair indemnification of the party to whom a work has been assigned, the author may decide either to alter the work (right to reconsider) or to discontinue its exploitation (right of withdrawal), at all times during the term of his/her contract and with no obligation to justify such a decision.

Economic rights

Economic rights, also sometimes referred to as “property rights” authorise the authors to use the work in the form of their choice.  It is by virtue of these rights that an author may authorise (or deny) the reproduction and public performance of his/her work, and derive remuneration therefrom, as the case may be. 

Economic rights are exclusive and sole the author may determine the conditions for exploitation of the work, in particular when licensing others to use it.
Economic rights are limited in time, unlike moral rights which are said to be perpetual. The 1997 law which translated the 29 October 1993 European Directive on the harmonisation of the term of protection, lays down that all of the above economic rights are conferred upon the author for a lifetime and to his/her subsequent rights holders for the current year plus the 70 years following the former’s death (art L 123-1 CPI).  For works of collaboration, the term is 70 years from the death of the last joint-author.

  • Performance right
    The author has the right to authorise or refuse communication of his/her work to the public by whatever means (art L 122-2 du CPI), whether it be direct performance, such a live performance of the work by performing artists (concert, theatre performance, public recitation…), or indirect performance such as a public screening or broadcasting of said work.
    By way of exception, the law provides that the author may not prohibit private and free performances strictly taking place in a family context (article L. 122-5-1°).
  • Right of reproduction
    Pursuant to article L 122-3 of the CPI, the author is entitled to authorise any mechanical reproduction of his/her work by the means and on the media of his/her choice, for the purpose of indirect communication to the public (for instance in the form of DVD, CD, etc.). By way of exception, the author may not object to copies or reproductions made for use by the copyist and not intended for collective use (article L. 122-5-2°).  This is known as the private copy exception.
    Distinct from reproduction rights stricto sensu, adaptation rights, which imply the partial reproduction of the original work or its transformation, also require prior authorisation from the author or his/her rights holder(s).
  • Author's remuneration
    As the holders of economic rights, authors can choose to exploit their work themselves or transfer this right to a third party by way of a license for a consideration.  By law, the principle has been laid down that the remuneration shall be proportional to the author’s profit: whatever the agreement between the author and the licensee, and the former’s remuneration shall mandatorily be proportional to the proceeds of the sale or exploitation of said work (art. L 131-4-1° of CPI).   Provision has been made by law for one exception to this rule with a lump-sum remuneration, but only in very limited cases (for instance when the contribution of an author does not form one of the major components of said work, e.g. inserting a 5-minute piece of choreography in a feature film).
  • Drafting of the author’s rights license agreement
    The author’s rights license agreement should be laid down in writing.  This principle imperatively applies to performance, publishing and audiovisual production contracts, as well as to audiovisual adaptation contracts
    (Art. L 131-2-1 and L 131-3 paragraph 3 of CPI). For other types of contracts, the Code of intellectual property refers back to the technical rules of evidence of the Civil Code (Art. 1341to 1348).
    The author’s rights license agreement shall explicitly mention each one of the rights that is being licensed (reproduction, performance, adaptation...).  If the wording is not sufficiently precise, the contract will necessarily be construed in a restrictive manner, i.e. all rights not expressly assigned (licensed) under the contract are deemed to be held by the author.

The following information shall mandatorily appear in the contract (art L131-3 of CPI):

  • Identification of every one of the rights licensed (e.g.: reproduction right, performance right...),
  • Scope of exploitations covered by license agreements (e.g.: for what media, what broadcasting channels...),
  • Place of exploitation (e.g.: Europe, world...),
  • Term of license (e.g.: 5 years, 10 years, legal term...),
  • Author’s remuneration
  • Exclusive rights, if any.

3- Author’s rights infringements and associated sanctions

An infringement on author’s rights may be likened to counterfeiting.  It may be a:

  • breach of the author’s moral right (for instance prejudice to the author’s right of disclosure or authorship, prejudice to the right of respect for the work);
  • breach of the author’s economic rights (unauthorised full or partial reproduction and/or performance of the work).

These breaches are subject to criminal sanctions (article L. 335-2 CPI: 3 years’ imprisonment, € 300,000 fine and, if applicable, confiscation of any proceeds resulting from such infringement or infringing objects).  They are also liable to penalties such as the payment of damages to the author as remedy for the prejudice experienced.

The regulator has also provided for specific sanctions:

  • on the one hand in the event of circumvention of technical protection measures implemented (article L. 335-3-1 and L.335-3-2 CPI: from € 750 to 30,000 penalties and up to 6 months imprisonment).
  • and on the other hand, in the event of infringements involving publishers of peer-to-peer type software allowing unauthorised exchanges of protected works (article L. 335-2-1 CPI: criminal penalties of up to € 300,000 and up to 3 years imprisonment).
  • in addition to the above, specific sanctions are currently being discussed that would be geared to counterfeiting cybernauts.