Copyright in employees’ works

Copyright in employees’ works concerns works created by an employee in the course of employment. Unlike patent law, French copyright law does not transfer the rights in such creations to the employer. Article L. 111-1 of the French Intellectual Property Code provides that the existence of an employment or service contract entails no derogation from the author’s enjoyment of the right. The employee therefore remains the owner, save for statutory exceptions or an express assignment.

The principle and its statutory exceptions

The employee who creates a work holds the economic rights and the moral rights in it, even where it was produced on the employer’s instructions, during working hours and with the company’s resources. The law provides for three exceptions. The first concerns software and its documentation, the economic rights in which vest in the employer under Article L. 113-9 IPC where created by one or more employees in the performance of their duties or on the employer’s instructions. The second is the collective work, created on the initiative of a person who discloses it under its own name and in which the contributions merge so that no separate right can be attributed to each contributor. The third concerns journalists, whose works are assigned to the press employer by operation of law, against remuneration.

Contractual assignment

Outside these cases, the employer must obtain an express assignment of the economic rights, subject to the formalities of Article L. 131-3 IPC, which requires each right assigned to be stated separately and its extent, purpose, place and duration to be defined. Since a global assignment of future works is void, a general clause in the employment contract vesting all future creations in the employer is ineffective. Practice relies on clauses assigning works as they are created, periodic amendments or deeds of assignment signed on delivery of each work. Whether remuneration separate from salary is required remains debated.

Creations on the borderline with patents

The regime differs sharply from that governing an employee invention, which vests mission inventions in the employer against additional remuneration. A single creation, for instance software embedded in a technical device, may fall under both copyright and patent law and be subject to two separate ownership regimes. The inalienable moral rights survive in all cases, and the employee keeps the right to be named, except where the work is collective. Failure to obtain an assignment exposes the employer to an infringement action by its former employee or the employee’s successors in title, particularly after the employment ends.

Key points

The employment contract does not transfer the employee’s copyright to the employer, except for software, collective works and journalists’ works. The employer must arrange a written, precise assignment renewed as works are created, since a global assignment of future works is void. Employment contracts of creative staff, developers and designers should be audited and assignments regularised before any corporate transaction.

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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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