Copyright of public sector employees

The copyright of public servants is the special regime applicable to works created by the staff of the State, local authorities, public administrative establishments, independent administrative authorities and the Banque de France in the performance of their duties or in accordance with instructions received. Article L. 111-1, paragraph 3, of the French Intellectual Property Code lays down the principle that these staff members enjoy copyright in their works, subject to the reservations set out in Articles L. 121-7-1 and L. 131-3-1 to L. 131-3-3 of the same Code, introduced by the Act of 1 August 2006.

The principle and its scope

A public servant is the author of his or her creations in the same way as anyone else, the existence of a statutory or contractual relationship with the public body entailing in itself no derogation. The derogating regime applies only to the staff of the public bodies listed, and it is set aside for staff whose disclosure of their works is not subject to any prior control by the hierarchical authority under their statute or the rules governing their duties, which covers in particular academic staff.

Adjustments to moral rights

Article L. 121-7-1 IPC limits the exercise of the public servant’s moral rights. The right of disclosure is exercised in compliance with the rules to which the public servant is subject in that capacity and with those governing the organisation, operation and activity of the public body. The public servant may not object to a modification of the work decided in the interest of the service by the authority vested with hierarchical power, unless the modification harms his or her honour or reputation. He or she may not exercise the right of withdrawal and reconsideration without the prior consent of that authority. The right of attribution remains intact.

Adjustments to economic rights

To the extent strictly necessary for the performance of a public service mission, the right to exploit a work created by a public servant in the performance of his or her duties is, from the moment of creation, assigned by operation of law to the public body. For the commercial exploitation of the work, the public body has only a right of first refusal, which does not apply to the research activities of a public scientific and technological establishment or of a higher education establishment when they are carried out with a private-law legal person. The terms on which the public servant shares in the proceeds derived from the exploitation of his or her economic rights are left to a decree adopted after consultation of the Conseil d’État. Software created by a public servant in the performance of his or her duties falls under the general regime of vesting in the employer.

Key points

A public servant is the author of his or her works, but the public body receives by operation of law the rights necessary for its public service mission, enjoys a right of first refusal for commercial exploitation and may limit moral rights in the interest of the service. Researchers and academic staff fall outside the derogating regime. Before exploiting a work by a public servant, characterise the employer, the scope of the mission and the commercial nature of the intended use.

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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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