Contributed By Cabinet Bouchara
French copyright law is governed by the French Intellectual Property Code, particularly Articles L111-1 to L343-7, and by the EU Copyright Directive of 2001 along with the other EU directives implemented into national law, which are the main sources of French copyright law.
The legislation can be accessed online at www.legifrance.gouv.fr.
France is a party to the Berne Convention of 9 September 1886, in its last version as modified on 28 October 1979.
France is also a party to the following international conventions and treaties:
Copyright protection in France is not subject to any specific formality. Protection is automatically awarded to original works that meet the legal requirements to be protectable under French Copyright Law, upon the creation of the work.
In accordance with the Berne Convention, this applies equally to foreign authors of protectable works, who do not need to follow any specific step in order to benefit from copyright protection in France.
Under French Law, a work must be original in order to benefit from copyright protection.
Originality under French copyright law is assessed by case law, and is to be understood to cover a work that bears the expression of the author’s personality.
This criterion applies to all kind of works – the type or form of the work are irrelevant, as is the merit of the author or the purpose of the work. However, Article L112-2 of the Intellectual Property Code provides for a non-exhaustive list of protectable works under French law.
Under French copyright law, protection is automatically awarded to original works upon the creation of the work, without any formality.
Therefore, there is no public list or registry of protected works in France.
French law provides for a non-exhaustive list of protected works, covering literary works, dramatical works, musical works, cinematographic works, works of fine arts such as paintings, graphics and sculptures, photographic works, plans, maps and sketches.
However, this list is not comprehensive, so a non-categorised work of art can be protected if it meets the general requirement of originality.
The components of software that may be protected by copyright, subject to the general requirement of originality, are as follows:
However, the following features of software are not protected by copyright:
As regards the nature of the protection awarded to the components that are eligible for protection, there are no differences from other forms of copyright protection. Software can also be cumulatively protected by patent law when it has technical characteristics that meet the usual patentability criteria (novelty, inventiveness, sufficiency of description) and belongs to a larger group of invention which is patentable.
Databases, either in electronic or non-electronic form, benefit from the general copyright protection if they meet the originality requirement.
There is a sui generis legal protection available to makers of databases, provided that there has been substantial financial, material or human investment in either the obtaining, verification or presentation of the contents.
This sui generis protection is independent from general copyright protection and lasts for 15 years following the establishment of the database.
Industrial designs benefit from copyright protection if they meet the originality requirement. They benefit from the general copyright protection, like any other original work.
Moreover, in France industrial designs can be cumulatively protected by Design Law if they meet the specific requirements thereof, which are novelty and individual character, and provided they are registered with the French Industrial Property Office.
As well as copyright, industrial design owners can also benefit from protection under the unregistered Community design right, which offers a protection of three years from the date on which the design was first disclosed within the territory of the European Union.
Fictional characters can be protected by copyright, whereby the protectable work consists in the constant features of the fictional character.
Audiovisual works such as radio programmes or TV news can be protected under copyright law. Copyright protection is acknowledged on a case-by-case basis by the French courts, taking into consideration all relevant elements of the work in light of the general requirement of originality. For instance, the Paris Court of Appeal recently refused copyright protection for a musical television show (CA Paris, No. 17/09422, October 22nd, 2019).
Under French law, the organiser of a sporting event owns the exclusive rights on the image of the event – ie, the transmission of the sporting event has to be specifically authorised by its organiser. This protection is not governed by copyright law, but rather by the French Sports Law Code.
Advertising material and product labels are also protectable by French copyright law, provided they meet the general requirement of originality, which, as for other works, is assessed on a case-by-case basis.
As regards museum exhibitions, aside from the copyright protection that would be granted to each work of art individually, the overall exhibition can benefit from copyright protection if it meets the originality requirement.
Websites can be protected by copyright if they meet the general requirement of originality. For instance, the Court of Appeal of Versailles has acknowledged the protection by copyright law of a website after considering that the combination of elements that formed the website was the result of a creative effort and showed the personality of the author (CA Versailles, June 21, 2016, No.15/00612).
Recipes and perfumes are not protectable by copyright under French law.
Maps are specifically listed in Article L112-2 of the French Intellectual Property Code as forms of protectable works and can therefore be protected, as long as they meet the requirement of originality.
The author is a natural person (companies can not be considered “authors” under French Law) that is generally identified by his or her name.
Unless proven otherwise, the authorship belongs to the person or persons under whose name the work is disclosed. There is a presumption of copyright ownership, in the absence of a claim by the author, in favour of the person who makes an unequivocal use/disclosure of the original work under his/her name. This person can be a company.
French copyright law provides for different scenarios when it comes to works that are created from the joint work of several authors. The three different forms of joint work are defined in Article L113-2 of the French Intellectual Property Code, and specific regimes are applicable to each of them. The only regime that provides for a joint authorship is that of the “collaborative work”, which consists of a work whose creation is contributed to by several natural persons –for instance, a song. Each author is considered a “co-author”, and the creation gives rise to joint ownership of the work.
The copyrights on a collaborative work are governed under a system of “indivision”, thus all acts that affect the use/disclosure of the work require the unanimous agreement of all co-authors.
However, there is an exception to this general rule in cases where the contribution of each author can be individualised from the overall work, in which case each author may exercise its copyright on its own part of the work, provided it does not affect the overall work.
Under French copyright law, the author is free to stay anonymous or to choose a pseudonym. This choice does not change the nature nor the extension of the copyright protection (Article L113-6 of the French Intellectual Property Code).
An anonymous author is represented by the publisher or the person who commercially distributes the work in order to exercise the copyrights related to the work at issue.
For anonymous works, French law provides an exclusive right for a period of 70 years from January 1st in the calendar year following the year in which the work was first made public. As soon as the author makes himself known, so that the work is no longer anonymous, the general regime of protection applies (ie, 70 years after the author’s death).
Orphan works are governed by a legal regime that is different from the legal regime of anonymous work.
French law defines an orphan work as a work protected by copyright and disclosed, for which the rights holder cannot be identified nor found, despite diligent, proven and serious research.
Written orphan works that are included in collections of public libraries, museums, archives, cinematographic or sound heritage institutions or educational institutions (with the exception of photographs and fixed images), which exist as standalone works, may be used by the above-mentioned entities in the context of their cultural, educational and research missions. However, French law requires that these entities do not pursue any profit-making purpose and that they earn revenue where appropriate and for a period not exceeding seven years that covers only the costs arising from the digitisation and making the works accessible to the public.
A similar regime applies to audiovisual or sound orphan works that form part of these aforementioned collections or that were produced by public service broadcasting organisations before 1 January 2003 and are included in the archives of the aforementioned organisations.
It is also to be noted that France has established a specific system regarding out-of-commerce works, which are works that are still under copyright protection but are no longer available to the public due to the lack of current exploitation. Indeed, the French legislative body has decided to set up a specific collective management of right to facilitate the digital use of those works.
Collective works are defined by French law as works created at the initiative of a natural or legal person who edits it, publishes it and discloses it under its direction and name, and where the personal contribution of the various authors involved in its creation is merged into the overall work without it being possible to attribute to each author a separate right in the work.
The main condition to this qualification is that the contributions of the authors fuse in such a way that makes it impossible to attribute separate rights to the contributors.
Economic and moral rights are therefore granted to the natural or legal person who initiated and directed the creation and disclosed it under his name (Article L113-5 of the Intellectual Property Code).
Under French copyright law, only natural persons can qualify as authors. Therefore, a legal person, such as a company, cannot be considered the “author” of a protectable work.
In France, there is no specific work-for-hire doctrine per se, with the general rule being that copyrights are granted to the author, who can also be an employee. However, in the case of the above-mentioned collective work, the employer can be considered as the right holder if the work has been created at his initiative and under his control, and if the individual contributions merge in the work so that it is impossible to allocate separate rights to each contributor.
Employers and employees are also free to sign a copyright licence/assignment agreement that provides for the transfer of the economic rights to the employer in accordance with the general rules applying to such agreements. Thus, the parties have to specify the economic rights concerned by the transfer, the purpose and extension of the use, as well as the relevant territory and duration. General clauses in the employment contract that provides for the transfer of “all rights” on future works are void.
It is also to be noted that a specific regime applies to software. Indeed, economic rights of software created in the frame of the employee’s work missions and their documentation are automatically transferred to the employer by virtue of the law.
The specific economic rights granted by to the copyright owner are listed and governed by Articles L122-1 et seq of the French Intellectual Property Code, and include the following:
Authors of graphic or plastic works benefit from an additional economic right, called droit de suite, which could be translated as “resale right”, which results in the right for the author to participate in the proceeds of any sale of a work after the first transfer by the author or his successors in title, where a professional in the art market acts as a seller, buyer or intermediary.
The duration of the economic rights equals the author’s whole life and up to 70 years after the death of the author.
French law does not establish a different treatment for each economic right at issue, nor the type of copyrighted work.
However, the following specific rules apply, depending on the authors:
Economic rights can be alienated in whole or in part, exclusively or non-exclusively, without limitation or conditions.
However, in order to be valid, an assignment of economic rights must comply with the formal requirements set by the French Intellectual Property Code.
Economic rights are transmissible after the author's death. The copyright owners enjoy the same reproduction and representation rights after the death of the author, for a period of 70 years therefrom, and can therefore alienate it in whole or in part, exclusively or non-exclusively, without limitation or conditions.
There is no minimum age per se to exercise copyrights. However, the rights holder must have the legal age and capacity to carry out a commercial activity and/or enter into commercial contracts, so certain aspects of the exercise of his or her rights granted by copyrights law could be limited by his or her age.
There are specific types of contracts relating to copyrights, which are governed by specific provisions of the French Intellectual Property Code, as follows:
The French Intellectual Property Code does not provide for any other specific contracts relating to copyrights, but it does set formal requirements that should be met by contracts that involve the transfer/sale of economic rights.
Indeed, these contracts must:
French law does not have an exhaustion doctrine with regards to copyrights.
The moral rights granted to the copyright owner are listed and governed by Articles L121-1 et seq of the French Intellectual Property Code.
They include the following:
The moral rights are perpetual. French law does not establish different terms according to the moral right at issue, the type of copyrighted work or the holder of the right. Only the author, being a natural person, and his heirs have moral rights over the work.
Moral rights are not alienable; they are inherent to the person of the author.
Moral rights in a work are transferred to the author's heirs upon his death. Moral rights may also be granted to a third party upon the death of the author, by virtue of testamentary provisions.
Articles L331-5 et seq of the French Intellectual Property Code set the regime for technical protection measures on copyrighted works.
Technical measures benefit from a legal protection that punishes both the personal acts and the preparatory acts of circumvention or neutralisation of a technical protection measure by criminal fine, unless such acts are carried out for research purposes. To be punishable, the act must have been conducted knowingly.
The criminal penalties incurred are detailed in Article L335-3-1 of the French Intellectual Property Code and range from a fine of EUR3,750 to six months of imprisonment and a fine of EUR30,000, depending on the specific action carried out to circumvent the technological measure.
The French Intellectual Property Code provides for a specific protection of Copyright Management Information, in Article L 331-11.
Moreover, Article L335-3-2 of the same Code details the criminal penalties incurred, which range from a fine of EUR3,750 to six months of imprisonment and a fine of EUR30,000, depending on the specific action carried out.
That being said, this article specifies that acts carried out for research or security purposes are not punishable.
The collective management of copyrights was created in France in the 18th century. There are legal societies that manage copyrights on behalf of right holders for their benefit, whether under legal provisions or a contract.
As a matter of principle, the French system allows the existence of several collecting societies, but there is only one collecting society for each type of work concerned.
These societies can only manage economic rights.
The role of collecting societies is to manage copyright or related rights on behalf of several right holders for their collective benefit.
Collecting societies are required to prepare and make public an annual transparency report, including a special report on the use of amounts deducted for the purpose of providing social, cultural or educational services, resulting from the management of rights under a legal licence or compulsory collective management.
In addition, these companies must compile an electronic database of the amount, use and name of the beneficiaries of cultural actions.
Collecting societies must also publish updated information on their websites, including their status, the general regulations, standard contracts and tariffs, the list of members of their management, administrative and management bodies, the policy for the distribution of sums due to right holders, the list of representation agreements and their signatories, the policy for the management of undistributable sums, and the procedures for handling consents and disputes.
At least once a year, they must make information relating to their management available to each of the right holders to whom they have allocated or paid income from the operation of their rights during the previous financial year.
In addition, upon request they must communicate the works or other protected objects they represent, the rights they manage, directly or under a representation agreement, and the territories covered.
The French Intellectual Property Code does not provide specific rules on synchronisation.
Courts deal with synchronisation cases by applying general copyright rules.
French law has no general provision listing the factors of the permitted use of copyrighted works without the copyright owner’s consent, but establishes a list of exceptions to copyright in Article L122-5 of the Intellectual Property Code.
This list is comprehensive and based on statutory law. In all cases, exceptions have to respect the so-called “three step test”, and they must not be detrimental to the normal use of the work and must not cause an unjustified prejudice to the legitimate interests of the author.
Exceptions set by Article L122-5 of the Intellectual Property Code are multiple and may provide for solely the representation right (ie, private representation in a family circle) or the reproduction right (ie, private copying exception), or for both (ie, parody).
In fact, on the condition that the work has been disclosed, the author cannot prohibit:
France establishes an exception to copyright in the case of private copying, which applies to copies made from a legal source and only when the copy is reserved for the private use of the copier and not for collective use.
This exception does not apply to copies of artworks intended to be used for the same purposes as those for which the original artwork was created.
In addition, the copy of software is limited to the backup copy only.
France establishes an exception to copyright in the case of reproductions of architectural works and sculptures permanently placed on public places.
This exception applies to natural persons and is only for non-commercial purposes, as long as it does not lead to an “abnormal disturbance” for the owner.
Any commercial use of the image of national public buildings is subject to a royalty.
France establishes an exception to copyright for provisional reproduction that has a transitory or accessory nature, when it is an integral and essential part of a technological process and its sole purpose is to enable the lawful use of the work or its transmission between third parties through a network involving an intermediary.
This exception may only apply to works other than software and databases.
In addition, the reproduction of these works cannot have any economic value of its own.
France establishes an exception to copyright for parodies, pastiches and caricatures, taking into account the use of the genre.
Exceptions to the application of copyright law are provided for by the French legal system, with the purpose of reconciling freedom of expression, the right to information and other human rights with copyright.
A balance of the various parties' interests is carried out by French law, resulting in an exclusive list of copyright exceptions that is interpreted by French courts.
France recognises neighbouring rights to copyright for performers, phonogram producers, videogram producers and audiovisual communication companies.
French regulation does not provide for specific types of contracts in order to transfer, license or sell neighbouring rights.
Some exceptions to copyright are applicable to neighbouring rights, as follows:
A copyrighted work would be considered as infringed as soon as the work is published, reproduced, represented or distributed in disregard of the laws and regulations relating to the copyright of the author.
Under French law, copyright infringement does not require an actual copy of the work: it is assessed by taking into account the similarities (and not the differences) between the original work and the defendant’s work. Therefore, the reproduction of only some of the original characteristics of a copyrighted work can be considered an infringement.
The following can constitute defences to copyright infringement actions:
The French Intellectual Property Code provides for several defences against copyright infringement, as follows:
Within the writ of summons initiating legal proceedings, the plaintiff must specify the measures taken beforehand to attempt an amicable settlement of the matter.
As of 1 January 2020, for claims with a value of EUR5,000 and under, the plaintiff must prove that it has tried one of the alternative dispute mechanisms prior to initiating the legal proceedings (see 9.14 Alternative Dispute Resolution).
For claims of a higher value, there are no specific legal requirements as to the precise steps to be undertaken prior to introducing a legal action, nor is there a specific time period to respect prior to initiating legal proceedings.
Until 31 December 2019, the Tribunal de Grande Instance (Regional court) had the jurisdiction/competence for handling copyright proceedings.
More specifically, only ten regional courts, as listed in the French Intellectual Property Code, have special jurisdiction for handling copyright proceedings: Paris, Nanterre, Lille, Nancy, Strasbourg, Rennes, Lyon, Bordeaux, Marseilles and Fort-de-France.
In the frame of a reorganisation of Civil Procedure, on 1 January 2020, the Tribunal de Grande Instance merged into the Tribunal Judiciaire, and further regulations are expected in the upcoming months regarding special jurisdiction in intellectual property matters.
Copyright infringement actions can be initiated by the author of the copyrighted work or the owner of the copyright if this is different from the author.
In the absence of a claim by the authors, the courts entrust a presumption of ownership of the rights to the persons who make a public use of the work.
As a general rule, licensees that do not own the copyrights cannot claim copyright infringement. They can, however, obtain damages for their own prejudice arising from the infringement, through an action based on the general civil law of unfair competition.
However, the law differentiates between exclusive and non-exclusive licensees and by way of exception allows exclusive licensees of copyrights on phonograms and videograms to take part in a copyright infringement action.
As mentioned above, third parties such as the owner of a licence on copyrights may claim damages for their own prejudice arising from copyright infringement on the grounds of the general civil law of unfair competition.
There can also be more than one defendant (infringer) involved and sanctioned in the frame of proceedings.
Urgent measures in summary proceedings are available for right holders in order to put an end to copyright infringement as soon as possible, and thereby avoid/limit imminent or actual prejudice.
Such measures can be requested and obtained before filing infringement proceedings on the merit.
The general conditions to file summary proceedings are as follows:
Moreover, conservatory or restoration measures can be obtained, notwithstanding the existence of a serious challenge, either to prevent imminent damage or to stop a clearly unlawful disturbance.
Protective measures that can be granted to copyright owners include the following:
There is a legal obligation to start proceedings on the merits subsequent to obtaining a court order to seize counterfeiting goods. This action on the merits must be introduced at the latest within 20 working days, or within 31 calendar days, following the seizing operations, whichever one of these two periods is longer, otherwise the court order authorising the seizure will become null.
There is no obligation to start legal proceedings on the merits in other cases.
Experts may be called upon by both the parties and the courts themselves, particularly when complex and/or particular works are involved.
According to Article L332-3 of the Intellectual Property Code, bailiffs may be assisted by experts during the counterfeit seizure proceedings of software, but the presence of such experts is not mandatory.
French law provides for a national procedure of customs detention of goods in the context of counterfeiting and parallel imports as a complement to EU Regulation No. 608/2013 of June 12th, 2013.
Customs seizure may be carried out all across the French territories and not only at the borders when the customs declaration is made and applies to goods originating from non-EU countries.
The right holder must make a formal request for customs detention, and he or she has to file evidence of his or her rights. The right holder then has ten days to file an action before a French court so that the detention could be maintained for an indefinite duration.
Customs authorities have the possibility to seize counterfeit and parallel imports ex officio. In this scenario, right-holders have to make a formal request within four days of the notification of the seizure.
Seized goods can also be destroyed by customs authorities.
Civil and criminal sanctions (fine, imprisonment) are available in the case of copyright infringement, depending on the type of action brought by the right holder. Civil sanctions have the purpose of putting an end to the infringement, usually by the means of different injunctions, as well as the reparation of the damages caused by the infringement. It is to be noted that no punitive damages are available under French law.
Copyright infringement can constitute a criminal offence enforced through criminal means, so criminal sanctions are also available. Right holders may either bring the alleged infringer directly before criminal court or intervene as a “civil party” in a criminal procedure brought before the court by a prosecutor. Nevertheless, right holders usually prefer civil proceedings due to the nature and specificities of intellectual property rights.
Also, in 2009 the French legislative body introduced administrative measures known as “graduated response” to make internet users more aware of copyright infringements. In fact, internet users responsible for alleged copyright infringement are first contacted by e-mail by an administrative authority (HADOPI) then by a registered mail to inform them that they are at risk of being fined up to EUR1,500 if they fail to stop infringing copyrights. However, the HADOPI does not pronounce any decisions – it transfers case files to French courts for that purpose.
The appellate procedure for copyright proceedings is the same as the general appellate procedure before civil and/or criminal courts.
That being said, the court of appeal that has jurisdiction to hear a case is the one to which the court of first instance that issued the appealed decision is attached.
The decision of the court of appeal can be appealed before the French Supreme Court – ie, the Cour de Cassation, located in Paris.
In principle, the losing party is required to bear the costs incurred during the procedure before the court, such as judicial expert’s fees. However, the judge may decide that the successful party has to bear the whole or any part of these costs.
The reimbursement of attorney fees and other expenses is governed by Article 700 of the French Civil Procedure Code. Parties have to expressly ask the court to rule on these kinds of costs and oblige the losing party to reimburse the prevailing party. Also, the judge has a large discretionary power to determine the amount to be paid, taking into consideration such principles as equity or the financial situation of the parties.
As mentioned above, the French law of civil procedure requires the plaintiff to specify the measures taken beforehand to attempt an amicable settlement of the matter, within the writ of summons initiating legal proceedings.
Moreover, for claims with a value of EUR5,000 and under, the plaintiff must establish that it has previously tried, unsuccessfully, to solve the matter through an alternative dispute resolution mechanism.
The most common alternative dispute resolution methods are as follows: