Reproduction right

The reproduction right is one of the two components of the author’s right of exploitation, together with the performance right. Article L. 122-3 of the French Intellectual Property Code defines it as the material fixation of the work by any process enabling it to be communicated to the public indirectly. It corresponds to the reproduction right harmonised by Article 2 of Directive 2001/29/EC, which covers any direct or indirect, temporary or permanent reproduction, by any means and in any form, in whole or in part.

The scope of the right

Article L. 122-3 IPC mentions, by way of example, printing, drawing, engraving, photography, casting and all processes of the graphic and plastic arts, as well as mechanical, cinematographic or magnetic recording. For works of architecture, reproduction also consists in the repeated execution of a plan or standard design. The notion is technology-neutral: digitising a book, downloading a file, copying into RAM, 3D printing a sculpture or storing on a server are all reproductions. Partial reproduction is caught in the same way as complete reproduction, as Article L. 122-4 IPC expressly states, and the Court of Justice holds that an extract is protected where it reproduces elements expressing the author’s own intellectual creation.

Exceptions to the reproduction right

Article L. 122-5 IPC removes several acts of reproduction from the monopoly, including private copying reserved for the use of the copier, which is offset by a levy, short quotation, temporary reproduction that is transient or incidental and forms an integral part of a technological process, reproduction for preservation purposes by libraries, museums and archives, and the reproductions necessary for text and data mining. Reprography is subject to mandatory collective management under Articles L. 122-10 et seq. IPC. These exceptions are construed strictly and are subject to the three-step test.

Evidence and sanctions

Unlawful reproduction is infringement, subject to civil and criminal sanctions. It may be proved by any means, in particular by saisie-contrefaçon, a report drawn up by a judicial officer or a certified screen capture. The comparison focuses on the similarities between the work and the copy, not on the differences, and only the taking of original elements is infringing. In the digital environment, the location of the act of reproduction, for example on a foreign server, raises questions of jurisdiction and applicable law which must be anticipated.

Key points

Any fixation of a work, in whole or in part, on any medium whatsoever is a reproduction requiring the author’s written authorisation, save for a statutory exception strictly construed. Good faith is no defence to civil infringement. Before any copying, digitisation or uploading, it should be checked that the contract does cover the reproduction right and the intended medium.

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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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