Right of attribution (droit à la paternité)

The right of attribution is the prerogative of the moral right which enables the author to require that his or her name and status be mentioned on the work and in connection with any exploitation of it. Article L. 121-1 of the French Intellectual Property Code provides that the author enjoys the right to respect for his or her name and status. Like the other attributes of the moral right, it is attached to the person and is perpetual, inalienable and imprescriptible, and it passes on death to the author’s heirs.

The content of the right

The right of attribution has a positive and a negative aspect. Positively, the author may require that his or her name appear on each copy and at each communication to the public, in accordance with customary practice, together with an accurate indication of his or her status as author, co-author, translator or adapter. Negatively, the author may object to his or her name being affixed to a work which is not his or hers or which has been distorted, and to a third party claiming authorship of the work, which is one of the forms of plagiarism. The author may also choose anonymity or a pseudonym, in which case Article L. 113-6 IPC provides for representation by the original publisher for as long as the author has not revealed his or her identity. The quotation exception moreover applies only if the author’s name and the source are clearly indicated.

Inalienability and its applications

The author can neither assign the right of attribution nor waive it permanently. Ghostwriting, by which an author writes under another person’s name, is tolerated, but the courts recognise the right of the true author to claim authorship at a later stage, an advance and irrevocable waiver being without effect. Clauses in commission or employment contracts attributing authorship to the commissioning party or the employer are therefore fragile. For software, Article L. 121-7 IPC restricts the right of integrity and the right of withdrawal, but leaves the right of attribution untouched, which remains fully in force. In a collective work, contributors retain the right to be named where customary practice allows.

Attribution litigation

Omission of the name, misattribution or usurpation of authorship give rise to compensation for non-pecuniary harm, irrespective of any economic prejudice, and the author may obtain the correction of the credits and publication of the judgment. The action is imprescriptible in principle, only the claim for damages in respect of a given act being subject to the ordinary limitation period. The assessment takes account of the customs of the sector, certain media making credit impossible or unusual, which does not relieve the exploiting party of the obligation to include it where it is materially possible.

Key points

The author always has the right to have his or her name and status associated with the work, or to remain anonymous, and cannot waive that right permanently. Omission of the name infringes the moral right, is actionable in itself and weakens proof of authorship. Every contract should provide for the manner in which the name is to be credited, and those terms should be complied with at each exploitation, including online.

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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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