Copyright licence

A copyright licence is the contract by which the author or the owner of the economic rights authorises a third party to exploit a work by specified means, for a specified term and in a specified territory, without transferring ownership of the rights. The French Intellectual Property Code does not draw a clear line between a licence and an assignment, and subjects both to the same protective formalities, in particular under Articles L. 131-2 and L. 131-3.

Formalities protecting the author

Article L. 131-3 of the French Intellectual Property Code requires the transfer of rights to be conditional on each right granted being stated separately and on the field of exploitation being defined as to its extent, purpose, place and duration. A licence authorising exploitation “in all media” or “worldwide and without time limit” with no further detail is construed restrictively in favour of the author, and modes of exploitation not mentioned are deemed not to have been granted. The agreement must be in writing for performance, publishing and audiovisual production contracts, and in practice writing is indispensable as evidence in every case. A global assignment of future works is void, which rules out granting in advance rights in creations not yet identified.

Remuneration

The author’s remuneration must in principle be proportional to the revenue from exploitation, a lump sum being allowed only in the cases listed by statute, in particular where the basis of calculation cannot practically be determined or the author’s contribution is ancillary. This rule applies to licences as well as to assignments. Since the transposition of Directive (EU) 2019/790, it has been supplemented by a right to appropriate and proportionate remuneration, a transparency obligation on exploitation revenue and a contract adjustment mechanism where the remuneration is disproportionately low.

Scope and limits of the authorisation

The licensee may exploit the work only within the limits set by the agreement, and any overstepping amounts to infringement. The licence confers no rights over the moral rights, which remain inalienable, so the licensee must respect the attribution and integrity of the work whatever the scope of the authorisation. The licence is in principle personal and may not be assigned or sub-licensed without the right holder’s consent. Open licences, such as Creative Commons licences or free software licences, are copyright licences in their own right, and their validity under French law is accepted subject to the formal requirements.

Key points

A copyright licence must state each right granted and define its extent, purpose, place and duration, failing which it will be construed restrictively. Remuneration is in principle proportional and moral rights remain outside the agreement. Before any exploitation, check that each intended mode, digital in particular, is expressly covered by the authorisation.

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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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