Subject matter and scope of copyright

Protectable works

What types of works may be protected by copyright?

As a matter of principle, all creations are protected by copyright provided they are original. Considerations such as the merit of the author or the purpose of the work, the type of work or the form of expression are irrelevant.

‘Originality’ has been defined by French case law as the expression of the personality of the author. This definition is in line with European case law, which has validated the French broad conception of originality. Therefore, the mere display of skill, labour and judgement is not sufficient; creativity on the part of the author is required.

Article L 112-2 of the French Intellectual Property Code (IPC) provides for a non-exhaustive list of the works that may be protected by copyright law: books and other writings; speeches; musical works; works of fine art such as paintings, drawings or sculptures; photographic and cinematographic works; and plans, maps and sketches.

Rights covered

What types of rights are covered by copyright?

Copyright covers both economic and moral rights.

Pursuant to article L 122-1 of the IPC, economic rights relate to representation rights as well as reproduction rights.

Representation rights consist of the communication of the work to the public by any means and reproduction rights consist of the physical fixation of a work by any process permitting it to be communicated to the public in an indirect way.

Acts of representation or reproduction of the work carried out without the authorisation of the owner of the rights constitute acts of infringement.

Excluded works

What may not be protected by copyright?

Mere ideas or concepts cannot be the subject of copyright protection and thus may be freely used. It is only the form in which the idea is expressed that can be protected.

Fair use and fair dealing

Do the doctrines of ‘fair use’ or ‘fair dealing’ exist, and, if so, what are the standards used in determining whether a particular use is fair?

There is no doctrine of fair use or any equivalent general open norm in France. However, article L 122-5 of the IPC lists exceptions to the exclusive right of the author to reproduce his or her work. Indeed, once a work has been disclosed, the author may not prohibit, for instance:

 

[private] and gratuitous performances carried out exclusively within the family circle, parody, pastiche and caricature, observing the rules of the genre or acts necessary to access the contents of an electronic database for the purposes of and within the limits of the use provided by contract

 

In addition, Order No. 2021-1518 of 24 November 2021 implements certain provisions of the EU Directive 2019/790 of 17 April 2019 on copyright and neighbouring rights into French law. It provides for not optional exceptions to copyright and neighbouring rights to promote, in particular, data mining for scientific research purposes, the use of works for educational purposes and their reproduction for the purpose of preserving cultural heritage.

Architectural works

Are architectural works protected by copyright? How?

As long as their work is original, architects own the copyright. Indeed, article L 112-2 12 of the IPC expressly mentions the plans, sketches and three-dimensional works relative to architecture. For instance, reproduction of a plan without authorisation, in order to build a new building, constitutes infringement.

Law No. 2016-1321 provides for a new exception to copyright infringement (article L 122-5 11 of the IPC) pursuant to which individuals are allowed to reproduce or represent architectural works and sculptures located permanently in public places for non-commercial purposes.

Performance rights

Are performance rights covered by copyright? How?

Performance rights are the rights granted to a performer, such as a musician, a dancer or any other person who acts, sings, recites or otherwise performs. In France, these rights are referred to as ‘neighbouring rights’.

Pursuant to article L 212-3 of the IPC, performers have the exclusive right to authorise all recording, reproduction or communication to the public of their performance. Furthermore, the performer’s permission is required in case of any separate use of the sounds or images of his or her performance where both the sounds and images have been fixed.

There is, however, an exception concerning audiovisual works: the contract concluded between a performer and a producer for the performance of an audiovisual work implies the performer’s authorisation to fix, reproduce and communicate this performance to the public.

In addition, Order No. 2021-580 of 12 May 2021 implements partially the EU Directive 2019/790 on the right for the author or performer who has assigned his or her rights on an exclusive basis to terminate the contract in the case of non-exploitation of the assigned work by the assignee. The terms of implementation will be determined by professional agreements between the collective management organisations and the representative organisations of the assignees, or in the absence of an agreement within 12 months of the publication of the Order, by decree. Furthermore, an additional remuneration is also provided for all works except software when the proportional remuneration initially provided for proves to be exaggeratedly low in relation to the income derived from the exploitation of the work.

Concerning performers, the Order provides for a limited list of cases where lump sum remuneration is possible.

Other decrees will be issued in application of the Order concerning, in particular, the conditions under which the author or performer may obtain communication of information held by the sub-licensee of his or her rights with respect to the rendering of accounts.

The provisions regarding remuneration and accountability to authors and performers are effective as of 7 June 2022 to all current contracts.

Neighbouring rights

Are other ‘neighbouring rights’ recognised? How?

The IPC lists two other ‘neighbouring rights’ that are only economic rights:

  • the rights of the phonogram producers; and
  • the rights of the videogram producers.

 

Alongside those ‘neighbouring rights’, producers of databases benefit from a sui generis right. Databases are protected for 15 years following their establishment.

The Law No. 2019-775 dated 24 July 2019 grants neighbouring rights to press publishers. The term of these economic rights shall be two years from 1 January of the calendar year following that of the first publication of a press publication (article L 211-4 of the IPC).

In addition, Order No. 2021-580 of 12 May 2021, Order No. 2021-798 of 23 June 2021 and Order No. 2021-1518 of 24 November 2021 complete the implementation of the EU Directive 2019/790 of 17 April 2019 on copyright and neighbouring rights into French law.

Moral rights

Are moral rights recognised?

Moral rights are recognised in France. They are perpetual, inalienable and imprescriptible, and therefore may not be transferred, renounced by the author and must be respected even after the work has entered the public domain. After the death of the author, moral rights are transferred to his or her heirs.

As a result, moral rights belong to the author, even though he or she may have transferred the economic rights to someone else.

Moral rights cover the following prerogatives:

  • The right to divulge his or her work.
  • The right to have the integrity of his or her work respected. This right allows the author to oppose any modification of his or her work (cuts, for instance) as well as to oppose any modifications that would alter the spirit of his or her work.
  • The right to have his or her name indicated on any representation or reproduction of the work. It is called the right of authorship. It should be noted, however, that the author is entitled to remain anonymous or to use a pseudonym.
  • The right to reconsider or to withdraw his or her work from the market even after publication, provided that he or she indemnifies the assignee for any harm suffered as a result of the reconsideration or the withdrawal.

 

Any violation of the moral right of the author constitutes an act of infringement.