Right of withdrawal and reconsideration (droit de retrait et de repentir)

The right of withdrawal and reconsideration is the prerogative of the moral right which enables the author to go back on the exploitation of his or her work after having authorised it. Article L. 121-4 of the French Intellectual Property Code states that, notwithstanding the assignment of the right of exploitation, the author, even after publication of the work, enjoys a right of reconsideration or withdrawal as against the assignee. Withdrawal brings the exploitation to an end, while reconsideration allows the author to modify the work before any further exploitation. It is the most distinctive attribute of the French moral right, unknown to most foreign legal systems.

Conditions of exercise

The right is exercised as against the assignee of the rights of exploitation, that is, within a contractual framework, and not against the public or the owners of copies already sold, whom the author cannot compel to return them. It is subject to an essential condition: the author may exercise it only on condition of first indemnifying the assignee for the loss that the reconsideration or withdrawal may cause. The indemnity covers the expenditure incurred and the loss of profit, and its prior payment is a condition for exercising the right, not a mere consequence. The right is moreover discretionary in principle, the author having no obligation to give reasons, subject to abuse, which is established where the withdrawal pursues an aim unrelated to the protection of the creation, for example the wish to obtain better financial terms from another exploiting party.

The assignee’s right of first refusal

Article L. 121-4 IPC completes the framework with a safeguard for the ousted assignee: if, after exercising the right of reconsideration or withdrawal, the author decides to have the work published, he or she must offer the rights of exploitation first to the assignee originally chosen, and on the terms originally agreed. This rule discourages speculative withdrawals and protects the investment of the publisher or producer, which recovers its contract if the work, modified or not, is put back on the market.

Statutory exclusions

The legislature has excluded this right in two situations where it would paralyse exploitation. For software, Article L. 121-7 IPC deprives the author of the right of reconsideration or withdrawal, unless a more favourable provision is agreed. For public servants, Article L. 121-7-1 IPC makes the exercise of this right subject to the consent of the hierarchical authority, for works created in the course of their duties. Nor does the right apply to the collective work, whose promoter is vested with the rights from the outset, or to assignments that the author has granted on a final basis and whose performance is complete. Finally, it differs from the right of disclosure, which concerns the first communication of the work to the public.

Key points

The author may always withdraw his or her work from exploitation or modify it, even after assigning it, provided the assignee is first indemnified and offered first refusal of any future exploitation on the original terms. Software and works by public servants are excluded. Exploiting parties should be aware that this right cannot be excluded by contract, and authors that it can be exercised neither free of charge nor on a mere whim.

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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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