intellectual property seminar 2 - author's rights - february 2014

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Céline Bondard, 10 Apr 2023

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Maître Céline BondardSciences Po [email protected]

Intellectual Property

Seminar 2: Author’s rights

January 2014

mailto:[email protected]

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Introduction - A. Why create IP rights?

1. Why create IP rights: economic considerations

Patents or copyright: To create an incentive to innovate and promote technological or cultural progress.

Trademarks: To preserve the information of consumers as to the origin of products.

« Certainly an inventor ought to be allowed a right to the benefit of

his invention for some certain time. It is equally certain it ought not

to be perpetual; for to embarrass society with monopolies for every

utensil existing, and in all the details of life, would be more injurious

to them than had the supposed inventors never existed…How long the

term should be is the difficult question. » Thomas Jefferson, 1807

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Introduction - A. Why create IP rights?

2. Why create IP rights: practical considerations

To find a balance between keeping our project confidential and developing it.

To better protect our intellectual works.

To put a value on intangible works. US businesses invests about $1 trillion in IP - as much as they invest in creating tangible

assets.

To better negociate and draft contracts with our

partners.

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Introduction – B. Types of IP rights

Définition: Exclusive rights

given to creations of the

mind to the author of such

creations.

Industrial property in France: (i) industrial works such as patents, (ii) distinctive signs such as trademarks and domain names, (iii) designs and

models: registration creates a monopoly.

Literary and artistic property: intellectual works, author’s

rights (France) / copyright (US), and related rights: no

registration, no monopoly.

1. What is intellectual property?

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• Article L 111-1 of the IP code: « 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. »

Author’s rights: 70 years after the author’s death

• Art L.711-1 of the IP Code: «a trademark is a sign that may be represented graphically and which serves to distinguish products or services of a physicial or personal or moral entity. »

Trademarks: perpetual rights (renewal possible every 10 years)

• Article L.511-1 of the IP Code: «May be protected by design and models rights the appearance of a prodct (…) caracterized in particular by its lignes, contours, colors, shape, texture or materials (…). »

Design and models rights: 25 years

• Article L.611-1 of the IP Code: «Every invention may obtain an industrial property title delievered by the INPI director, who gives its owners an exclusive right of exploitation (…). In exchange, the invention shall be divulged to the public. »

Patent law: 20 years in most casesAnd Coca-Cola?

2. The Main Rights

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• Gathering of information, whether under electronic form or not, individually accessible. Offers a double protection:• Copyright: appearance, architecture. Condition for

protection: originality. • « Sui generis » right: content of the database. Condition for

protection: economic value: financial, time or investment in ressources. Duration: 15 years.

Databases: copyright; sui generis right (15 years)

• Copyright: software architecture, object code and source code, documentation.

• Patents law: if the software allows for the realization of a product or process (tangible effects). Elements that are not protected: Elements not protected: the program itself, its algorythms, the program langage.

Softwares: copyright; patents (20 years)

3. Special cases: databases and softwares

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Example:

A Few Numbers

• Professional social network created in 2003 in California; • Over 200 million users (vs. 50 million for Viadeo) in 2013;• Company specialised in recruiting: 20% of benefits through memberships, 20% through

advertising, and 50% through recruiters / headhunters;• Benefits second trimester of 2013: 363m$.

LinkedIn and the Value of IP

WEBSITE / SOFTWARE

DATABASE

NAME: LINKEDIN

CopyrightTrademar

kDesign and

modelsPatents

X✓

✓

✓XX X X✓ X X✓

“Sui

generis”

right

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Seminar 2 – Author’s rights / copyright

A. Rights on works of the mind1. Rights granted by author’s rights in France2. What may be protected3. How to protect a creation by using authors’ rights

B. Distribution of intellectual property rights1. Managed creations2. Group creations3. Author’s rights exemptions

C. Author’s rights: other considerations1. What is a derivative work of mind?2. What is image rights / personnality rights?3. American perspective: what is « work made for hire »?

D. Conclusion

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1. What rights are granted by author’s rights in France

I. Author’s rights– A. Rights on works of the mind

L.111-1 CPI: « 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 ».

- A property right;- Exclusive and enforceable against all;- Economic and moral rights /attributes.

But: no registration in France – no monopoly.

The term « author’s right » (droit d’auteur) is used to describe the right granted to authors of original forms of expression in civil law countries. The term « copyright » refers to the corresponding right in Anglo-American legal systems.

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Moral rightsEconomic rights

L. 123-1 IPC: « 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 ». Elements of economic rights:

Right of communication /performance: Right to communicate your creation to the public (art L 122-2 IPC), in public and live (concert, theatre) or with the help of physical supports (book, disc…). Right of reproduction: Right to authorize the physicial fixation of the creation on any support in order to indirectly communicate it to the public (art L 122-3 CPI).

L. 121-1 IPC: «An author shall enjoy the right to respect for his name, his authorship and his work. (…). It shall be perpetual, inalienable and imprescriptible. It may be transmitted mortis causa to the heirs of the author ».

Elements of moral rights:

- The right of paternity;- The right of integrity;- The right of divulgation or dissemination, i.e., to decide when and where a work should be made public;- The right of reconsideration, i.e., to withdraw a work from commerce, on the condition that the author indemnifies the transferee for any loss.

1. What rights are granted by author’s rights in France

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2. What may be protected?

Press Brochure

Paper and electronic

Website

Audiovisual and audio documents

Documentaries

Registration of conferences

Interviews

Multimedias documents

Photographs Ideas

Blu-ray, DVD, CD-ROM

Software

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3. How to protect a creation by using authors’ rights

Where to get it?

At the INPI, on the Internet or at their regional offices.

When to place it and for how long?

Whenever, ideally once you have a final version of your creation, or even at every step during the creation process. The envelope is kept for 5 years, renewable once.

Who can place it?

Anyone who wishes to constitute a proof of anteriority for inventions valid in France, exclusively to precisely ascertain the date of the creation of a work.

What may it contain?

- Two compartments: one for you, one for the INPI.- Introduce in every compartment the elements you wish to date: description or reproduction in two dimensions (texts, picture, photographs) of your creation. The envelope shall not contain « hard bodies » (cardboard, disc, USB key, etc…)

The « Soleau » envelope


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Seminar 2 – Author’s rights / copyright

A. Rights on works of the mind1. Rights granted by author’s rights in France2. What may be protected3. How to protect a creation by using authors’ rights

B. Distribution of intellectual property rights1. Managed creations2. Group creations3. Author’s rights exemptions

C. Author’s rights: other considerations1. What is a derivative work of mind?2. What is image rights / personnality rights?3. American perspective: what is « work made for hire »?

D. Conclusion

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Interns(employees)

Outside partners(webmaster, speakers, …)

The author has rights:L. 111-1 IPC:

« 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 » and « the existence or conclusion of a contract for hire or of services by the author of a work of the mind shall in no way derogate from the enoyment of the right afforded by in the first paragraph above (…) ».

Sign a contract with all parties;But this is not sufficient: there is no implied assignment in the

silence of the contract;You must verify the assignment of rights and its width; The assignment or rights is limited to the object of the contract; If the contract does not specify anything, then the author is the

owner of his / her work, even if that work has been made upon the direction of a third party.

1. Managed creations and contracts

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II. Author’s rights: distribution of IP rights

Collective work? Collaborative work?

L. 113-2 IPC : « Collective work shall mean a new work in wich a pre-existing work is incorporated without the collaboration of the author of the latter work. »

L. 113-2 IPC: « Work of collaboration shall mean a work in the creation of which more than one natural person has participated »

RIGHTS: The contributors may exploit autonomously their contributions, but cannot compete with the owner regarding the rights on the entire work.

RIGHTS: All contributors have the same rights on the work of mind and take collective decisions.

2. Group creations

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LIMITED LIST OF EXEMPTIONS:

• Private and free performances;• Short citations (cite the author, and use quotation

marks);• Analysis (critical or educational character);• Press review;• Broadcasting of political speech (informational goal);• Educational activities;• Parody (Article 122-5 of the IPC).

In all other situation, the authorization of the author shall be requested, otherwise it’s infringement!

3. Author’s rights exemptions

DEFINITION:

• Article 122-5 IPC: Once the author has divulged his work, he can’t forbit certain exploitations of it. In these instances, even if there is exploitation of the work, there is no infringement!

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ILLUSTRATION: EXEMPLE

So now you know about author’s rights / copyright. Tell us:

• What is author’s rights?

• Can an idea be protected?

• What is patrimonial right?

• What is moral right?

We’re looking at the artistic website of your choice. Think about:

• You’re auditing a website, what should you look for?

• What are the works subjected to author’s rights / copyrights?

• Who created the work?

• Where was the work created?

• Who owns the IP rights?

• Are there contracts between the parties?

• Are some works collaborative works? Collective works?

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II. Droit d’auteur – D. Conclusion

Maître Céline BondardAttorney at Law, Paris & New York

Bondard & Partnerswww.bondard.fr

[email protected]

http://www.bondard.fr/



intellectual property seminar 2 - author's rights - february 2014

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