Right of disclosure (droit de divulgation)

The right of disclosure is the prerogative of the moral right by which the author alone decides to make his or her work known to the public. Article L. 121-2 of the French Intellectual Property Code states that the author alone has the right to disclose the work and that he or she determines the method of disclosure and sets its conditions. This prerogative is the precondition for any exploitation: as long as the work has not been disclosed, no one may reproduce or perform it, and the exceptions to copyright do not apply.

The content of the right

The right of disclosure comprises two faculties. The first is the decision in principle to release the work to the public, which presupposes that the author considers it finished and worthy of being communicated. The second concerns the arrangements: the author chooses the mode of disclosure, whether a book, an exhibition, online publication or a performance, as well as the timing and conditions. The right is discretionary during the author’s lifetime, and only an abuse, for example its exercise with the intention of harming a contracting party, can give rise to liability. An author who has contractually undertaken to deliver a work may therefore refuse to disclose it, but is then exposed to the contractual consequences of that refusal.

The effects of disclosure

Disclosure is the act which makes the work exploitable and which opens to third parties the benefit of the exceptions in Article L. 122-5 IPC, all of which presuppose a disclosed work. It is generally analysed as an act that exhausts the right: once the work has been communicated to the public in a given form, the author can no longer object to further communications on the basis of the right of disclosure, but only through his or her economic rights or the right of integrity. Whether disclosure in one form authorises all forms of exploitation remains debated among legal writers. An undisclosed work enjoys enhanced protection, as its seizure by the author’s creditors is generally regarded as excluded and its communication to the public by a third party constitutes infringement aggravated by the infringement of the moral right.

Exercise after the author’s death

Article L. 121-2 IPC organises the transmission of the right of disclosure. After death, it is exercised by the executors appointed by the author, failing whom by the descendants, the spouse who is neither divorced nor remarried, the other heirs and then the universal legatees, unless the author has expressed a contrary wish. This right is distinct from the exploitation of the posthumous work, which is governed by the rules of Article L. 123-4 IPC. Article L. 121-3 IPC allows the judicial court (tribunal judiciaire), seised in particular by the Minister for Culture, to order any appropriate measure in the event of manifest abuse in the use or non-use of the right of disclosure by the representatives of the deceased author, which makes it possible to override an arbitrary refusal or an unjustified withholding.

Key points

The author alone decides whether, when and how his or her work is made available to the public, and no one may exploit an undisclosed work. After the author’s death, this power passes to the persons he or she designated, under the supervision of the court in the event of manifest abuse. Before publishing an unpublished work, the author’s wishes, or the agreement of those who legitimately exercise the right of disclosure, should be ascertained.

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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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