Term of copyright

The term of copyright refers to the period during which the economic rights in a work are reserved to the author and his or her successors in title. Under Article L. 123-1 of the French Intellectual Property Code, the author enjoys for life the exclusive right to exploit the work and, on the author’s death, that right continues for the benefit of the successors in title during the current calendar year and the seventy years that follow. Directive 2006/116/EC harmonises this term within the European Union. The moral right, for its part, is perpetual.

The principle and its starting point

The basic rule is seventy years after the death of the author, the period running from 1 January of the calendar year following the death. The Berne Convention imposes a minimum of only fifty years, which the European Union raised in order to harmonise national laws. On expiry of the period, the work enters the public domain: its exploitation becomes free, subject only to respect for the moral right, which the heirs continue to exercise. The term depends neither on the kind of work nor on its date of creation, but solely on the date of the author’s death, which must therefore be established with certainty.

Special rules

For the work of joint authorship, Article L. 123-2 IPC sets the starting point at the death of the last surviving co-author. For audiovisual works, only the author of the screenplay, the author of the dialogue, the author of the musical compositions specially created for the work and the principal director are taken into account. For pseudonymous, anonymous or collective works, Article L. 123-3 IPC provides for a term of seventy years from 1 January of the calendar year following publication, unless the author reveals his or her identity, in which case the ordinary rule applies. Article L. 123-4 IPC grants posthumous works disclosed after the expiry of protection a term of twenty-five years from 1 January following their publication. The wartime extensions in Articles L. 123-8 and L. 123-9 IPC and the thirty-year extension granted by Article L. 123-10 IPC to authors who died for France remain in the Code, but the Court of Cassation holds that the wartime extensions are in principle absorbed by the harmonised seventy-year term, save where a longer term had already been acquired before harmonisation.

Verification in practice

Before exploiting a work believed to be free, it is necessary to identify the author, the date of death, the nature of the work, the country of origin and, for works of joint authorship, the last survivor, and then to check that no neighbouring right, whose term follows its own rules, subsists in the recording or performance used. A mistake as to the term exposes the user to an infringement action, good faith being irrelevant in civil proceedings.

Key points

Economic rights last for the author’s lifetime and seventy years after the year of death, with special starting points for works of joint authorship, anonymous, collective and posthumous works, whereas the moral right never expires. Before any exploitation of a work presumed to be free, the date of death of each author, the country of origin and any neighbouring rights still in force should be checked.

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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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