LexInter | May 3, 2004 | 0 Comments


Copyright protects intellectual works. Within the meaning of the Intellectual Property Code, a work of the mind must be original and identifiable in order to be susceptible of appropriation. The imitation of a work of the mind constitutes an infringement.The scope of copyright excludes ideas that are not copyrightable creations.

Authors have moral and economic rights.

In addition to copyright protection, copyright infringement can be exercised through unfair competition and parasitism actions.

Various neighboring rights have developed, in particular in the context of the information society.




The copyright means all the rights given to creators in their literary and artistic works.


The works protected by copyright include: literary works (novels, poems, plays, reference books, newspapers and software), databases, films, musical compositions and choreography works, artistic works such as paintings, drawings, photographs and sculptures, architecture, and advertising creations, maps and technical drawings.



The author of a work has economic rights and in French law a moral right concerning his work. 

  • the moral right

moral rights involve four essential prerogatives

  1. the right to respect for his work which allows him to oppose any modification, alteration or denaturing of his work

  2.  the right for the author to decide alone on the disclosure or not of his work: he decides on the material conditions of its exploitation and the moment of distribution

  3. the right of paternity (art. L111-4 of the Intellectual Property Code) allowing him to require that his name be affixed on the material supports of his work

  4. the right of repentance and of withdrawal   allowing him at any time to modify his work (right of repentance) or to stop its exploitation (right of withdrawal)

these personal rights are elusive, perpetual, inalienable and imprescriptible. They are transferable to the heirs of the author.

v. moral rights in community law in the information society

the right of exploitation, which is an exclusive right of the author, includes the right of reproduction and the right of representation of the work.

The author enjoys the exclusivity of these rights throughout his life and his beneficiaries, during the seventy years following his death.

  1. the right of representation (art. L 122-2 of the Intellectual Property Code) consists in ” the communication of the work to the public by any process ” 

  2. the reproduction right (article L 122-3 of the Intellectual Property Code) consists in ” the material fixation of the work by any process which allows it to be communicated to the public in an indirect manner “

  • exceptions to the exclusive right

  1. private and free performances performed exclusively in a family circle

  2. copies or reproductions strictly reserved for the private use of the copyist and not intended for collective use.

These exceptions do not apply to databases (Law of July 1, 1998 transposing Directive 96/9 / EC of the European Parliament and of the Council of March 11, 1996 on the legal protection of databases)

They also do not apply to software where article L 122-6-II of the Intellectual Property Code provides as exceptions

  1. the copy made for backup purposes provided that this “is necessary to preserve the use of the software”

  2. the copy essential for the use of the software “in accordance with its intended purpose, including to correct errors (art. L122-6.1.II of the Intellectual Property Code)



Ideas cannot be protected as works of the mind (cf. Cass. 1st civ. October 17, 2000, Sté Eminence c / Sté FCB, BRDA November 15, 2000, p. 8).

On the other hand, the reproduction of an idea can constitute an act of parasitism engaging the civil liability of the person who committed the act (CA Paris 8 May 2000, BRDA 19/00 inf. 17) 

Acquisition of copyright

Copyright is acquired by the very fact of the creation of the work , without any need for formalities. The author of a work of the mind enjoys over this work, by the sole fact of his creation, the right of intangible property ( article L 111-1 ). The work is deemed to have been created, independently of any public disclosure, solely because of the creation, even incomplete, of the author’s conception ( article L 111-2 )  

Intangible property and ownership of the material object

 The intangible property is independent of the property of the material object. The purchaser of this object is not invested, by virtue of this acquisition, with any of the rights provided for by this code, except in the cases provided for by the provisions of the second and third paragraphs of article L. 123-4. . These rights remain in the person of the author or his successors in title who, however, may not require the owner of the material object to make this object available to them for the exercise of said rights. However, in the event of a notorious abuse by the owner preventing the exercise of the right of disclosure,

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