Posthumous work

A posthumous work is a work disclosed for the first time after the death of its author. It raises two distinct questions which the French Intellectual Property Code deals with separately: the decision to disclose, which falls within the right of disclosure organised by Article L. 121-2, and the ownership and term of the rights of exploitation, governed by Article L. 123-4. Protection depends not on the time of creation, since an unfinished manuscript is a work as soon as it is produced, but on the time of disclosure.

The decision to disclose

The author alone decides to release the work to the public. After the author’s death, Article L. 121-2 IPC entrusts the exercise of this right to the executors he or she appointed and, failing them, unless the author expressed a contrary wish, to the descendants, the spouse who is neither divorced nor remarried, the other heirs and then the universal legatees. These persons must respect the expressed or presumed wishes of the deceased, and Article L. 121-3 IPC allows the judicial court (tribunal judiciaire) to order any appropriate measure in the event of manifest abuse in the use or non-use of the right, whether an unjustified withholding or a publication contrary to the author’s wishes. The publication of unpublished writings, correspondence or drafts that the author had set aside is thus regularly challenged on the basis of the moral right, which survives the author without limit of time.

Ownership and term of the rights of exploitation

Article L. 123-4 IPC draws a distinction according to the date of disclosure. If the work is disclosed during the seventy-year period of protection following the year of death, the right of exploitation belongs to the author’s successors in title and expires with that period, so that late disclosure gives rise to no new protection. If the work is disclosed after that period has expired, an exclusive right lasting twenty-five years from 1 January following publication arises for the benefit of the owners of the work, by succession or otherwise, that is, the holders of the manuscript or medium, who carry out or arrange for the publication. The statute further requires the posthumous work to be published separately, unless it is merely a fragment of a previously published work, and prohibits combining it with works by the same author already published if the successors in title no longer hold the right of exploitation in them.

The interplay with the public domain

Posthumous disclosure does not take the author’s other works out of the public domain and does not extend the protection of works already published. The twenty-five-year right is an autonomous, assignable economic right whose term is calculated independently of the death. The moral right continues to be exercised by the author’s heirs, and not by the owner of the medium, which may lead to a split between the party exploiting the work and the party ensuring respect for it.

Key points

The disclosure of a work after its author’s death is a matter for the persons he or she designated or for close relatives, under the supervision of the court in the event of abuse. Where disclosed within seventy years of the death, the work belongs to the successors in title for the remainder of that period. Where disclosed later, it confers a twenty-five-year right on the owner of the medium. Before publishing any unpublished work, a careful distinction should be drawn between who may disclose and who may exploit.

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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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