Published on February 18, 2014
Intellectual Property Seminar 2: Author’s rights January 2014 Maître Céline Bondard Sciences Po Paris firstname.lastname@example.org Céline Bondard, Feb-14 1 1
Introduction - A. Why create IP rights? 1. Why create IP rights: economic considerations Patents or copyright: To create an incentive to innovate and promote technological or cultural progress. Trademarks: To preserve the information of consumers as to the origin of products. « Certainly an inventor ought to be allowed a right to the benefit of his invention for some certain time. It is equally certain it ought not to be perpetual; for to embarrass society with monopolies for every utensil existing, and in all the details of life, would be more injurious to them than had the supposed inventors never existed…How long the term should be is the difficult question. » Thomas Jefferson, 1807 2 Céline Bondard, Feb-14 2
Introduction - A. Why create IP rights? 2. Why create IP rights: practical considerations To find a balance between keeping our project confidential and developing it. To better protect our intellectual works. To put a value on intangible works. US businesses invests about $1 trillion in IP - as much as they invest in creating tangible assets. To better negociate and draft contracts with our partners. 3 Céline Bondard, Feb-14 3
Introduction – B. Types of IP rights 1. What is intellectual property? Définition: Exclusive rights given to creations of the mind to the author of such creations. Industrial property in France: (i) industrial works such as patents, (ii) distinctive signs such as trademarks and domain names, (iii) designs and models: registration creates a monopoly. Céline Bondard, Feb-14 Literary and artistic property: intellectual works, author’s rights (France) / copyright (US), and related rights: no registration, no monopoly. 4 4
Introduction – B. Types of IP rights 2. The Main Rights Author’s rights: 70 years after the author’s death • Article L 111-1 of the IP code: « 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. » Trademarks: perpetual rights (renewal possible every 10 years) • Art L.711-1 of the IP Code: «a trademark is a sign that may be represented graphically and which serves to distinguish products or services of a physicial or personal or moral entity. » Design and models rights: 25 years • Article L.511-1 of the IP Code: «May be protected by design and models rights the appearance of a prodct (…) caracterized in particular by its lignes, contours, colors, shape, texture or materials (…). » Patent law: 20 years in most cases And Coca-Cola? • Article L.611-1 of the IP Code: «Every invention may obtain an industrial property title delievered by the INPI director, who gives its owners an exclusive right of exploitation (…). In exchange, the invention shall be divulged to the public. » Céline Bondard, Feb-14 5 5
Introduction – B. Types of IP rights 3. Special cases: databases and softwares Databases: copyright; sui generis right (15 years) • Gathering of information, whether under electronic form or not, individually accessible. Offers a double protection: • Copyright: appearance, architecture. Condition for protection: originality. • « Sui generis » right: content of the database. Condition for protection: economic value: financial, time or investment in ressources. Duration: 15 years. Softwares: copyright; patents (20 years) • Copyright: software architecture, object code and source code, documentation. • Patents law: if the software allows for the realization of a product or process (tangible effects). Elements that are not protected: Elements not protected: the program itself, its algorythms, the program langage. Céline Bondard, Feb-14 6 6
Introduction – B. Types of IP rights Example: A Few Numbers • Professional social network created in 2003 in California; • Over 200 million users (vs. 50 million for Viadeo) in 2013; • Company specialised in recruiting: 20% of benefits through memberships, 20% through advertising, and 50% through recruiters / headhunters; • Benefits second trimester of 2013: 363m$. LinkedIn and the Value of IP Copyright WEBSITE / SOFTWARE DATABASE NAME: LINKEDIN Céline Bondard, Feb-14 ✓ ✓ ✓ Trademark X X ✓ Design and models X X X Patents ✓ X X 7 7
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 »? D. Conclusion 8 Céline Bondard, Feb-14 8
I. Author’s rights– A. Rights on works of the mind 1. What rights are granted by author’s rights in France 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 in France – 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. 9 Céline Bondard, Feb-14 9
I. Author’s rights– A. Rights on works of the mind 1. What rights are granted by author’s rights in France Economic 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 ». Moral rights 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 economic rights: Elements of moral 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). Céline Bondard, Feb-14 - 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; 10 - The right of reconsideration, i.e., to withdraw a work from commerce, on the condition that the author indemnifies the transferee for any loss. 10
I. Author’s rights– A. Rights on works of the mind 2. What may be protected? Paper and electronic Brochure Press Interviews Audiovisual and audio documents Registration of conferences Website Documentaries Blu-ray, DVD, CDROM Software Multimedias documents Photographs Céline Bondard, Feb-14 Ideas 11 11
I. Author’s rights– A. Rights on works of the mind 3. How to protect a creation by using authors’ rights The « Soleau » envelope 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. 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. Where to get it? At the INPI, on the Internet or at their regional offices. 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…) 12 Céline Bondard, Feb-14 12
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 »? D. Conclusion 13 Céline Bondard, Feb-14 13
I. Author’s rights– A. Rights on works of the mind 1. Managed creations and contracts The author has rights: L. 111-1 IPC: Interns (employees) Outside partners (webmaster, speakers, …) « 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 (…) ». Sign a contract with all parties; But this is not sufficient: there is no implied assignment in the silence of the contract; You must verify the assignment of rights and its width; The assignment or rights is limited to the object of the contract; 14 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. Céline Bondard, Feb-14 14
II. Author’s rights: distribution of IP rights 2. Group creations Collective 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. » RIGHTS: The contributors may exploit autonomously their contributions, but cannot compete with the owner regarding the rights on the entire work. Céline Bondard, Feb-14 Collaborative work? IPC: « Work of collaboration shall mean a work in the creation of which more than one natural person has participated » L. 113-2 RIGHTS: All contributors have the same rights on the work of mind and take collective decisions. 15 15
II. Author’s rights: distribution of IP rights 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! 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). In all other situation, the authorization of the author 16 shall be requested, otherwise it’s infringement! Céline Bondard, Feb-14 16
II. Author’s rights: distribution of IP rights ILLUSTRATION: EXEMPLE So now you know about author’s rights / copyright. Tell us: • What is author’s rights? • Can an idea be protected? • What is patrimonial right? • What is moral right? We’re looking at the artistic website of your choice. Think about: • You’re auditing a website, what should you look for? • What are the works subjected to author’s rights / copyrights? • Who created the work? • Where was the work created? • Who owns the IP rights? • Are there contracts between the parties? • Are some works collaborative works? Collective works? Céline Bondard, Feb-14 17 17
II. Droit d’auteur – D. Conclusion Maître Céline Bondard Attorney at Law, Paris & New York Bondard & Partners www.bondard.fr email@example.com 18 Céline Bondard, Feb-14 18
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