Free use of ideas (idée de libre parcours)

The free use of ideas is the principle that ideas, concepts, methods, styles and information cannot be appropriated through copyright, which protects only the form in which they are expressed. This principle is not expressly stated in the French Intellectual Property Code, but it follows from the concept of a work of the mind and from the requirement of a creation of form. It is set out in the TRIPS Agreement and in the WIPO Copyright Treaty, under which protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts.

The basis and scope of the principle

The principle rests on freedom of creation and of information, which would be hampered if ideas could be reserved. It explains why two authors may address the same subject, adopt the same genre or follow the same method without infringing each other, and why protection covers only that which, in the form, bears the imprint of the author’s personality. The concept of a television programme, the rules of a game, a cooking recipe, a technical process or an artistic approach thus remain available, even where they are new and ingenious. The principle also applies to software, for which Directive 2009/24/EC specifies that the ideas and principles underlying any element of a program, including its interfaces, are not protected by copyright.

The boundary between idea and form

The difficulty lies in drawing the line. The composition of a work, that is, the arrangement of its elements, the storyline, the sequence of scenes or the structure of a book, belongs to form and may be protected where it is original, whereas the theme or a summary synopsis remains an idea. The court assesses whether the elements taken are sufficiently precise and developed to constitute an expression, which leads to protecting a detailed formulation of the concept but not the concept itself. Originality then comes into play to determine whether that form deserves protection.

Alternative forms of protection

While ideas are free for all to use under copyright, their appropriation may be sanctioned on other grounds. Parasitism punishes the wrongful capture of an economic value resulting from work and investment, which covers, for instance, the taking of an elaborate business concept. Trade secret law protects confidential information against unlawful acquisition and use. Contract, lastly, makes it possible to reserve an idea between the parties, through a confidentiality agreement preceding the presentation of a project, or through a non-exploitation clause. Patents, for their part, protect technical inventions, which are ideas put into practice, under the conditions specific to patent law.

Key points

Ideas, concepts, methods and information cannot be appropriated through copyright, which protects only their original expression. The line runs between the theme or concept, which are free, and the detailed composition, which is protectable. Before presenting a project to a third party, conclude a confidentiality agreement and fix the concept in an elaborate and dated form, and consider patent or trade secret protection where the idea has a technical or economic dimension.

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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.

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