Economic rights (droits patrimoniaux)

Economic rights are the prerogatives of an economic nature that copyright confers on the author over the exploitation of his or her work. Under Article L. 122-1 of the French Intellectual Property Code, the right of exploitation comprises the performance right and the reproduction right. Economic rights stand in contrast to the moral right, which is attached to the person of the author, and differ from it in being assignable and limited in time. They form the subject matter of authors’ contracts and the basis of the infringement action.

The content of economic rights

The reproduction right covers the material fixation of the work by any process enabling it to be communicated to the public indirectly. The performance right covers its direct communication to the public by any process whatsoever, including broadcasting and making available online. Case law and legal writers attach to them the adaptation right, the translation right and the right of destination, which allows the author to control the use of copies lawfully put into circulation. The resale right, provided for in Article L. 122-8 IPC for the benefit of authors of graphic and plastic works, completes this framework in an inalienable form. Article L. 122-4 IPC sanctions any performance or reproduction, in whole or in part, made without the author’s consent, as well as translation, adaptation, arrangement or transformation.

Assignability and term

Article L. 122-7 IPC provides that the performance right and the reproduction right may be assigned free of charge or for consideration, the assignment of one not entailing that of the other, and the total assignment of either being limited to the modes of exploitation provided for in the contract. This regime underpins the protective formal requirements of Articles L. 131-1 et seq. IPC. Economic rights last for the author’s lifetime and, under Article L. 123-1 IPC, for the seventy years following the calendar year of his or her death, for the benefit of the successors in title. On their expiry, the work falls into the public domain.

Limitations and exceptions

Article L. 122-5 IPC sets out an exhaustive list of the exceptions that may be relied on against the author once the work has been disclosed: private copying, short quotation, parody, the teaching exception, temporary reproduction and text and data mining, among others. These exceptions must comply with the three-step test, which prohibits any conflict with the normal exploitation of the work or any unreasonable prejudice to the legitimate interests of the author. The exhaustion rule, derived from EU law, moreover deprives the author of control over the resale of a physical copy after its first sale in the Union with his or her consent, without affecting the reproduction and performance rights.

Key points

Economic rights give the author a monopoly over the reproduction and performance of his or her work, which may be assigned right by right and mode of exploitation by mode of exploitation, during the author’s lifetime and for seventy years after death. Any exploitation outside a contract and outside a statutory exception is infringement. For each intended use, it should be checked that it is covered by a precise written assignment or by a strictly applicable exception.

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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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