Authors' rights and their work
Protecting creation and cultural diversity.
Authors’ rights enshrine the very strong link that exits 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 the 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 in a contract, otherwise it would nullify the 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.
Several prerogatives are associated with this moral right. The French Code of Intellectual Property states: “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 disclosed his/her work, the CPI acknowledges that s/he alone is entitled to make his/her work public or not (except in the special case of audiovisual works). This is a very strong claim in that no use is possible for as long as the author has not accepted disclosure. The terms and use media of such disclosure to the public are also at the discretion of the author (art. L.121-2 CPI).
- Authorship: 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 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 use (right of withdrawal), at all times during the term of his/her contract and with no obligation to justify such a decision.
Economic rights, sometimes referred to as “patrimonial or property rights,” authorize authors to use the work in the form of their choice. It is by virtue of these rights that an author may authorize (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 the author alone may determine the conditions for use 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 that implemented the 29 October 1993 European Directive on the harmonization of the term of protection, lays down that all 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 author’s death (art. L 123-1 CPI). For works of collaboration, the term is 70 years from the death of the last joint author.
The author has the right to authorize or refuse communication of his/her work to the public by whatever means (art. L 122-2 CPI), whether it be direct performance, such as a live performance of the work by performing artists (concert, theater performance, public recitation, etc.) or an 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 (art. L. 122-5-1° CPI).
Right of reproduction
Pursuant to article L 122-3 of the CPI, the author is entitled to authorize 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 (art. L. 122-5-2° CPI). 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 authorization from the author or his/her rights holder(s).
As the holders of economic rights, authors are free to manage 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 remuneration shall be proportional to the author’s profit: whatever the agreement between the author and the licensee, the former’s remuneration shall mandatorily be proportional to the proceeds of the sale or use of said work (art. L 131-4-1° CPI). Provision has been made by law for one exception to this rule with a lump-sum remuneration, but only in very limited cases.
Drafting of the authors’ rights license agreement
The authors’ 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.
The authors’ rights license agreement shall explicitly mention each one of the rights that is being licensed (reproduction, performance, adaptation, etc.). 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(s).