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Céline Bondard, 02-15 1
Maître	
  Céline	
  Bondard	
  
cb@bondard.fr	
  	
  	
  
Cabinet	
  Bondard	
  
www.bondard...
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Céline Bondard, 02-15 2
I. Introduction – Map of seminars
1. Intellectual property: an introduction
Economics / Diff...
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Céline Bondard, 02-15 3
Seminar 2 – Author’s rights / copyright
A. Rights on works of the mind
1. Rights granted by ...
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Céline Bondard, 02-15 4
1. What rights are granted by author’s rights in France
I. Author’s rights– A. Rights on wor...
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Céline Bondard, 02-15 5
I. Author’s rights– A. Rights on works of the mind
Moral rightsEconomic rights
L. 123-1 IPC:...
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Céline Bondard, 02-15 6
I. Author’s rights– A. Rights on works of the mind
2. What may be protected?
Press
Brochure
...
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Céline Bondard, 02-15 7
3. How to protect a creation by using authors’ rights
Where to get it? At the INPI, on the I...
8	
  
Céline Bondard, 02-15 8
Seminar 2 – Author’s rights / copyright
A. Rights on works of the mind
1. Rights granted by ...
9	
  
Céline Bondard, 02-15 9
I. Author’s rights– A. Rights on works of the mind
Interns
(employees)
Outside partners
(web...
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Céline Bondard, 02-15 10
II. Author’s rights: distribution of IP rights
Collective work?
Collaborative work?
L. 113...
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Céline Bondard, 02-15 11
II. Author’s rights: distribution of IP rights
LIMITED LIST OF EXEMPTIONS:
•  Private and ...
12	
  
Céline Bondard, 02-15 12
Seminar 2 – Author’s rights / copyright
A. Rights on works of the mind
1. Droits accordés ...
13	
  
Céline Bondard, 02-15 13
C. Author’s rights: other considerations
What is a derivative work?
Definition: work based...
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Céline Bondard, 02-15 14
C. Author’s rights: other considerations
2. Image rights / personality rights in France
Pe...
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Céline Bondard, 02-15 15
C. Author’s rights: other considerations
3. American Perspective « Work made for hire »
1....
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Céline Bondard, 02-15 16
Illustration: personality rights
The Louvre Museum case
• The Louvre Museum vas a victim t...
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Céline Bondard, 02-15 17
Illustration: personality rights
The Louvre Museum case
•  Who has rights on the article?
...
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Céline Bondard, 02-15 18
II. Droit d’auteur – D. Conclusion
Maître Céline Bondard
Attorney at Law, Paris & New York...
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Intellectual property - Seminar 2 - Author's rights - February 2015

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Intellectual property - Seminar 2 - Author's rights - February 2015

  1. 1. 1   Céline Bondard, 02-15 1 Maître  Céline  Bondard   cb@bondard.fr       Cabinet  Bondard   www.bondard.fr     Intellectual Property Seminar 2: Author’s rights February 2015: Sciences-Po Paris
  2. 2. 2   Céline Bondard, 02-15 2 I. Introduction – Map of seminars 1. Intellectual property: an introduction Economics / Different types of protection available 2. Copyright law and related questions Author's rights / Exceptions to copyright law / Personnality rights 3. Enforcement of IP rights and Infringement issues Types of enforcement of IP rights / Copyright infringement 4. WORKSHOP: on copyright law, infringement and related issues 5. Mock trial on copyright and infringement 6.  Intellectual property contracts Different types of IP contracts / How to draft an IP clause / Creative commons 7. WORKSHOP: on intellectual property contracts and creative commons 8. Intellectual property issues on the Internet Terms of use / Personal data
  3. 3. 3   Céline Bondard, 02-15 3 Seminar 2 – Author’s rights / copyright A. Rights on works of the mind 1. Rights granted by author’s rights in France 2. What may be protected 3. How to protect a creation by using authors’ rights B. Distribution of intellectual property rights 1. Managed creations 2. Group creations 3. Author’s rights exemptions C. Author’s rights: other considerations 1. What is a derivative work of mind? 2. What is image rights / personnality rights? 3. American perspective: what is « work made for hire »?
  4. 4. 4   Céline Bondard, 02-15 4 1. What rights are granted by author’s rights in France I. Author’s rights– A. Rights on works of the mind L.111-1 CPI: « The author of a work of the mind shall enjoy in that work, by the mere fact of its creation, an exclusive incorporeal property right which shall be enforceable against all persons. This right shall include attributes of an intellectual and moral nature as well as attributes of an economic nature ». - A property right; - Exclusive and enforceable against all; - Economic and moral rights /attributes. But: no registration of Author’s rights in France, therefore no monopoly. The term « author’s right » (droit d’auteur) is used to describe the right granted to authors of original forms of expression in civil law countries. The term « copyright » refers to the corresponding right in Anglo-American legal systems.
  5. 5. 5   Céline Bondard, 02-15 5 I. Author’s rights– A. Rights on works of the mind Moral rightsEconomic rights L. 123-1 IPC: « The author shall enjoy, during his lifetime, the exclusive right to exploit his work in any form whatsoever and to derive monetary profit therefrom. On the death of the author, that right shall subsist for his successors in title during the current calendar year and the 70 years thereafter ». Elements of economic rights: Right of communication /performance: Right to communicate your creation to the public (art L 122-2 IPC), in public and live (concert, theatre) or with the help of physical supports (book, disc…). Right of reproduction: Right to authorize the physicial fixation of the creation on any support in order to indirectly communicate it to the public (art L 122-3 CPI). L. 121-1 IPC: «An author shall enjoy the right to respect for his name, his authorship and his work.  (…). It shall be perpetual, inalienable and imprescriptible. It may be transmitted mortis causa to the heirs of the author ». Elements of moral rights: - The right of paternity; - The right of integrity; - The right of divulgation or dissemination, i.e., to decide when and where a work should be made public; - The right of reconsideration, i.e., to withdraw a work from commerce, on the condition that the author indemnifies the transferee for any loss. 1. What rights are granted by author’s rights in France
  6. 6. 6   Céline Bondard, 02-15 6 I. Author’s rights– A. Rights on works of the mind 2. What may be protected? Press Brochure Paper and electronic Website Audiovisual and audio documents Documentaries Registration of conferences Interviews Multimedias documents Photographs Ideas Blu-ray, DVD, CD- ROM Software
  7. 7. 7   Céline Bondard, 02-15 7 3. How to protect a creation by using authors’ rights Where to get it? At the INPI, on the Internet or at their regional offices. When to place it and for how long? Whenever, ideally once you have a final version of your creation, or even at every step during the creation process. The envelope is kept for 5 years, renewable once. Who can place it? Anyone who wishes to constitute a proof of anteriority for inventions valid in France, exclusively to precisely ascertain the date of the creation of a work. What may it contain? - Two compartments: one for you, one for the INPI. - Introduce in every compartment the elements you wish to date: description or reproduction in two dimensions (texts, picture, photographs) of your creation. The envelope shall not contain « hard bodies » (cardboard, disc, USB key, etc…) The « Soleau » envelope I. Author’s rights– A. Rights on works of the mind
  8. 8. 8   Céline Bondard, 02-15 8 Seminar 2 – Author’s rights / copyright A. Rights on works of the mind 1. Rights granted by author’s rights in France 2. What may be protected 3. How to protect a creation by using authors’ rights B. Distribution of intellectual property rights 1. Managed creations 2. Group creations 3. Author’s rights exemptions C. Author’s rights: other considerations 1. What is a derivative work of mind? 2. What is image rights / personnality rights? 3. American perspective: what is « work made for hire »?
  9. 9. 9   Céline Bondard, 02-15 9 I. Author’s rights– A. Rights on works of the mind Interns (employees) Outside partners (webmaster, speakers, …) The author has extensive rights: L. 111-1 IPC: « The author of a work of the mind shall enjoy in that work, by the mere fact of its creation, an exclusive incorporeal property right which shall be enforceable against all persons » and « the existence or conclusion of a contract for hire or of services by the author of a work of the mind shall in no way derogate from the enoyment of the right afforded by in the first paragraph above (…) ». è Sign a contract with all parties; è But this is not sufficient: there is no implied assignment in the silence of the contract; è You must verify the assignment of rights and its width; è The assignment or rights is limited to the object of the contract; è If the contract does not specify anything, then the author is the owner of his / her work, even if that work has been made upon the direction of a third party. 1. Managed creations and contracts
  10. 10. 10   Céline Bondard, 02-15 10 II. Author’s rights: distribution of IP rights Collective work? Collaborative work? L. 113-2 IPC  : «  Collective work  shall mean a new work in wich a pre-existing work is incorporated without the collaboration of the author of the latter work. » L. 113-2 IPC: «  Work of collaboration shall mean a work in the creation of which more than one natural person has participated » RIGHTS: The contributors may exploit autonomously their contributions, but cannot compete with the owner regarding the rights on the entire work. RIGHTS: All contributors have the same rights on the work of mind and take collective decisions. 2. Group creations
  11. 11. 11   Céline Bondard, 02-15 11 II. Author’s rights: distribution of IP rights LIMITED LIST OF EXEMPTIONS: •  Private and free performances; •  Short citations (cite the author, and use quotation marks); •  Analysis (critical or educational character); •  Press review; •  Broadcasting of political speech (informational goal); •  Educational activities; •  Parody (Article 122-5 of the IPC). è In all other situation, the authorization of the author shall be requested, otherwise it’s infringement! 3. Author’s rights exemptions DEFINITION: •  Article 122-5 IPC: Once the author has divulged his work, he can’t forbit certain exploitations of it. In these instances, even if there is exploitation of the work, there is no infringement!
  12. 12. 12   Céline Bondard, 02-15 12 Seminar 2 – Author’s rights / copyright A. Rights on works of the mind 1. Droits accordés par le droit d’auteur 2. What rights are granted by author’s rights 3. How to protect a creation by using authors’ rights B. Distribution of intellectual property rights 1. Managed creations 2. Group creations 3. Author’s rights exemptions C. Author’s rights: other considerations 1. What is a derivative work of mind? 2. What is image rights / personnality rights? 3. American perspective: what is « work made for hire »?
  13. 13. 13   Céline Bondard, 02-15 13 C. Author’s rights: other considerations What is a derivative work? Definition: work based on one or several preexisting works of the mind. Exemples: Traduction, musical adaptation, synopsys of a story, musicale, résumé d’une histoire Who has rights on derivative works ? A derivative work can be made by the original author or by a third party WITH the authorization of the author. 1. Derivative work Batman
  14. 14. 14   Céline Bondard, 02-15 14 C. Author’s rights: other considerations 2. Image rights / personality rights in France Personality rights are not protected by French law directly, but through the interpretation of the article 9 of the Civil code, on the respect of one’s private life: «Everyone is entitled to the respect of one’s private life » Limitation: after publication of the photograph, if your house becomes a touristic place for instance, and that tourists come and go before it, creating a prejudice for you, you can requeste for the picture not to be published. PRIVATE HOUSE: Right to exploit the picture without the authorization of the owner, as long as the reproduction and commercial exploitation don’t create any prejudice for the owner. Limitation: Right to protection stops when the work of art is reproduced not as such, but by necessity, in the context of a shot taken in a public place. WORK OF ART: Shall ask for the authorization of the author (scultpure for instance), in order to exploit the picture, unless it has fallen into public domain. Limitation: if you participate to a public manifestation, you implicitely give the right to be protographed. PEOPLE: Right to one’s image is valid for public or private persons, known or unknown, because everyone is entitled to the respect of his or her private life.
  15. 15. 15   Céline Bondard, 02-15 15 C. Author’s rights: other considerations 3. American Perspective « Work made for hire » 1. The work is created by an INDEPENDENT CONTRACTOR. It is a « work for hire » if: •  He is paid to create an original work of mind, AND •  Both parties have agreed on the « work for hire » status before the work began, AND •  The work is encompassed in one of the 9 types of contributions evoked by the Copyright Act (translation; motion picture or other audiovisual work ;collective work; an atlas; a compilation; instructional text; a test; answer material for a test; and supplemental work. •  A mere payment of the work is not sufficient for it to be deemed a « work for hire »! 2.The work is created by an EMPLOYEE in the context of his work. No need for the contract to specify the rights of the employee and the company: the invention mission is implicit. In the US, it is possible for a company to be the author of a work, then said to be a « work made for hire  ». This works in the following two cases:
  16. 16. 16   Céline Bondard, 02-15 16 Illustration: personality rights The Louvre Museum case • The Louvre Museum vas a victim to a burglary. • The newspaper « Art News » publishes an article on the burglary, which it chooses to illustrate by a photography of the Louvre museum, reproducing, noticeably, the Louvre pyramid. • What do you think?
  17. 17. 17   Céline Bondard, 02-15 17 Illustration: personality rights The Louvre Museum case •  Who has rights on the article? •  Who would the Louvre sue, theoretically? The photographer? The newspaper? •  Are we talking about personnality rights or image rights? •  Right to one’s image •  Who has rights to the Louvre Building? •  Who has rights to the Louvre pyramid? •  « Accessory » theory
  18. 18. 18   Céline Bondard, 02-15 18 II. Droit d’auteur – D. Conclusion Maître Céline Bondard Attorney at Law, Paris & New York Bondard and Partners www.bondard.fr cb@bondard.fr

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