Copyright infringement

Copyright infringement is the violation of the author’s rights in his or her work, by any reproduction, performance or dissemination, by any means whatsoever, in breach of the author’s economic rights or moral rights. It is defined and penalised in Articles L. 335-2 and L. 335-3 of the French Intellectual Property Code, and it gives rise to the civil liability of the infringer under Articles L. 331-1 et seq. of the same Code, which derive from the transposition of Directive 2004/48/EC.

Constituent elements

Infringement requires a protected work, that is, an original work of the mind still covered by the monopoly, and an unauthorised act of exploitation falling within the scope of an exclusive right. The Court of Cassation holds that infringement is assessed by reference to the similarities and not the differences, so that taking the characteristic elements of the work’s originality is sufficient, even in part and even with new contributions. Good faith is irrelevant in civil proceedings, the violation being made out by the mere performance of the act. In criminal proceedings, case law presumes guilty intent, and it is for the accused to rebut it. The creation by a third party of a work from a common idea or an identical source is not infringing, since copyright does not protect ideas.

Civil remedies

The civil action comes before specially designated judicial courts and is time-barred five years from the day on which the rightholder knew or ought to have known of the facts. The court may order an injunction subject to a penalty payment, the recall and destruction of the infringing copies, publication of the decision and an award of damages. In setting damages, the court takes into consideration separately the negative economic consequences suffered by the injured party, including lost profits and the loss sustained, the moral prejudice and the profits made by the infringer. As an alternative and on request, a lump sum exceeding the royalties that would have been due may be awarded. Provisional measures and a right of information complete the framework.

Criminal sanctions

The offence of infringement is punishable by three years’ imprisonment and a fine of 300,000 euros, increased to seven years and 750,000 euros where the acts are committed by an organised gang. Legal persons face additional penalties, including closure of the establishment and confiscation. Article L. 335-3 IPC treats as infringement the violation of the rights of the author of software and the recording of a cinematographic work in a cinema. Bringing a criminal prosecution in practice requires a complaint with an application to join the proceedings as a civil party or a direct summons, and the criminal court itself assesses the originality of the work.

Key points

Infringement is made out by any unauthorised act of exploitation concerning the original elements of a work, and good faith is no defence in civil proceedings. It gives rise to an injunction, to full compensation calculated under three separate heads and, in criminal proceedings, to severe penalties. As soon as a violation is discovered, secure evidence of originality and of the acts complained of, then sue before the five-year period expires.

---

This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

Intellectual property attorney · Tell us about your situation