Presumption of ownership (présomption de titularité)

The presumption of ownership is the evidential mechanism which relieves a party exploiting a work from having to provide full proof of its rights when it brings an infringement action. It has two sources. Article L. 113-1 of the French Intellectual Property Code presumes authorship, unless proved otherwise, in favour of the person or persons under whose name the work is disclosed. The case law of the Court of Cassation has added a presumption in favour of the legal entity exploiting a work under its name, as against third parties sued for infringement.

The statutory presumption of authorship

The presumption in Article L. 113-1 IPC benefits the natural person whose name appears on the disclosed work. It is rebuttable and may be overturned by proof that the signatory is not the creator, for example because he or she merely carried out another person’s instructions or appropriated a third party’s work. It applies in all disputes, including between alleged co-authors, and is one of the practical effects of the right of attribution.

The case law presumption in favour of the exploiting party

The Court of Cassation consistently holds that, in the absence of any claim by the natural person or persons who created the work, its exploitation by a legal entity under its name gives rise to a presumption, as against third parties sued for infringement, that the entity holds the economic rights. This solution allows businesses to act against infringers without producing the chain of assignments, which is often incomplete, and without having to establish that the work qualifies as a collective work. It requires unequivocal acts of exploitation carried out under the name of the legal entity and the precise identification of the works claimed, as the presumption cannot cover an undetermined collection.

The limits of the presumption

The presumption operates only as against third-party infringers. It is ineffective in the relationship between the exploiting party and the author who is a natural person, who retains the right to claim his or her rights and to rely on the absence of a written assignment complying with Article L. 131-3 IPC. It does not extend to the moral right, which remains attached to the person of the creator. The infringer may rebut it by establishing that the rights belong to a third party, for example by producing a claim by the author or by showing that the exploitation was not carried out under the claimant’s name. Legal writers criticise this mechanism, which circumvents the formal requirements protecting authors, but the courts maintain it for the sake of effectiveness in combating infringement.

Key points

A name affixed to a work gives rise to a presumption of authorship, and the unequivocal exploitation of a work by a business under its name gives rise to a presumption that it holds the economic rights as against infringers, without its having to produce the assignments. This presumption never protects against the author. Dated evidence of exploitation should therefore be kept for each work, and written assignments, which alone are enforceable against the creators, secured in parallel.

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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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