Ownership of copyright

Ownership refers to the determination of the person vested with copyright in a work. Under Article L. 111-1 of the French Intellectual Property Code, the author of a work of the mind enjoys, by the mere fact of its creation, an exclusive intangible property right enforceable against all. The original owner is therefore the natural person who creates. A legal entity becomes owner only derivatively, by assignment, or originally in the particular case of the collective work.

The principle of the creating natural person

The author is the person who performs the act of creation, that is, who makes the choices of form which characterise originality. A person who merely carries out precise instructions without creative freedom is not an author, any more than a person who supplies an idea or funding. Article L. 113-1 IPC presumes authorship, unless proved otherwise, in favour of the person or persons under whose name the work is disclosed. For anonymous or pseudonymous works, Article L. 113-6 IPC has the author represented by the original publisher for as long as the author has not revealed his or her identity.

Employees, public servants and commissioning parties

Article L. 111-1 IPC specifies that the existence or conclusion of a contract for services or of employment entails no derogation from the author’s enjoyment of his or her right. Employers and commissioning parties are therefore never owners as of right of the works of their employees or contractors and must obtain an assignment in writing complying with the formal requirements of Article L. 131-3 IPC. Two statutory exceptions exist. For software, Article L. 113-9 IPC vests in the employer the economic rights in programs created by employees in the performance of their duties or following the employer’s instructions. For public servants, Article L. 131-3-1 IPC assigns as of right to the public body the right of exploitation, to the extent strictly necessary for the performance of a public service mission.

Ownership before the court

In infringement proceedings, the claimant must establish standing. A natural person benefits from the presumption of Article L. 113-1 IPC. A legal entity exploiting a work under its name benefits, under settled case law of the Court of Cassation, from a presumption of ownership of the economic rights as against third-party infringers, in the absence of any claim by the author. Outside that case, the chain of assignments must be produced, which makes a contractual audit indispensable before any action.

Key points

Copyright arises in the natural person who creates, and neither an employment contract nor a commission transfers the rights by itself, save for software created by employees and for public servants. A company holds the rights only through a written assignment complying with Article L. 131-3 IPC or through the qualification as a collective work. The chain of title should be checked from the moment of creation, because the presumption of ownership protects only against infringers and never against the author.

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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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