Work of the mind (œuvre de l’esprit)

The work of the mind is the subject matter protected by copyright. Article L. 112-1 of the French Intellectual Property Code protects the rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose. The statute does not define the notion and confines itself, in Article L. 112-2 IPC, to an indicative list of creations regarded as such. Case law has drawn two conditions from it: a perceptible creation of form and originality.

A creation of form

Copyright protects the form in which a thought is expressed, not the thought itself. Ideas, concepts, methods, styles, raw information and discoveries remain free for all to use and confer no monopoly, whatever their value. A work therefore requires a concrete shaping perceptible to the senses, whether written, oral, graphic, sound, three-dimensional or audiovisual. No fixation on a medium is required, however: Article L. 111-2 IPC deems the work created, irrespective of any public disclosure, by the mere fact that the author’s conception has been realised, even if unfinished. An improvised lecture, a choreography or a sketch is protectable as soon as it is expressed.

The irrelevance of kind, merit and purpose

Article L. 112-1 IPC prohibits the court from assessing the aesthetic value of the work or its usefulness. A work of fine art and an industrial object fall under the same regime, in accordance with the theory of the unity of art, which allows cumulative protection with design law. The list in Article L. 112-2 IPC illustrates this openness: books, lectures, dramatic, choreographic, musical and audiovisual works, works of drawing, painting, architecture and sculpture, photographic works, applied art, illustrations, maps, plans, software and the creations of the seasonal clothing industries. The list is not exhaustive. Article L. 112-3 IPC adds translations, adaptations, arrangements and anthologies, as well as databases, without prejudice to the rights of the author of the original work. Article L. 112-4 IPC finally protects the title of a work where it is original.

Protection without formality and its consequences in litigation

In accordance with the Berne Convention and Article L. 111-1 IPC, protection arises from the mere fact of creation, without deposit or registration. This absence of formality has a downside: a party relying on copyright in court must establish the date of creation, identify precisely the work claimed and explain what makes it original. Evidentiary deposits, including the Soleau envelope, serve only to prove priority and create no right.

Key points

Any original creation of form is a work of the mind, whatever its kind, merit or purpose, and it is protected from its creation without any formality. Ideas, methods and functionalities remain free. Before suing or contracting, the form claimed should be identified precisely, its date of creation documented and the demonstration of its originality prepared, because that is the ground on which the dispute is won or lost.

---

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.

Intellectual property attorney · Tell us about your situation