The web version proposed here is a simplified version of the data sheet. You can find the complete version, with more details and legal references, on the pdf linked at the bottom of the page.
Référence :
1 - The impact of literary and artistic property rights on the communication and publication of administrative documents
Principle
Administrative documents are communicated or published subject to literary and artistic property rights.
Position of the CADA and the Conseil d'Etat on moral rights
The CADA, following the Conseil d'Etat, considers that it is necessary to obtain the consent of the author beforehand. But these decisions are based only on the moral right of disclosure, and only in the context of a collaboration.
Position of the CADA and the Conseil d'État in matters of economic rights
On the other hand, the CADA seems to implicitly consider that no authorization under the author's economic rights would be necessary for the communication of administrative documents.
Fragility of the position of the CADA and the Conseil d'Etat
This position remains fragile because : The author's other moral rights must also be taken into consideration.
→the communication of documents, as well as their public dissemination, involves performing acts of reproduction and representation ;
→these acts, however, are the monopoly of the author by virtue of his economic rights,
→this assumes authorization from the latter.
Consequences of the existence of literary and artistic property rights
The existence of literary and artistic property rights on administrative documents is thus likely to hinder their free communication or distribution. This means in practice:
→ their communication or dissemination requires the prior authorization of the holders of these rights ;
→that in the absence of such authorization, the administration shall not proceed with such acts and shall refuse requests to that effect made to it ;
→ that in the event of communication or dissemination without such authorization, it could be considered as violating said rights.
Référence :
What about administrative documents created by public officials?
The CADA considers that "the administration does not have to request prior authorization from the public official, or where applicable from his or her beneficiaries, before proceeding with the communication or publication of the document" (with the exception of officials who are authors of works whose disclosure is not subject, by virtue of their status or the rules governing their functions, to any prior control by the hierarchical authority). Furthermore, in the event of communication or dissemination of documents by persons other than the administration employing the public official, authorization from the latter, as the assignee of the economic rights, should in principle be required.
Référence :
2 - Exclusion from the notion of public information of content protected by intellectual property rights held by third parties
Principle
Documents over which third parties hold intellectual property rights are excluded from the definition of public information.
What about the moral rights of authors?
It seems that moral rights should not be considered as an intellectual property right held by a third party, otherwise the directive would be void of substance.
What about the rights held ab initio by the administration?
An exclusion of rights held ab initio by the administration.
The administration may be the owner of literary and artistic property rights ab initio (for example as a database producer or in the case of a collective work). The administration cannot rely on these rights initially held by it to prevent communication or dissemination.
An explicit exclusion for databases whose publication is mandatory
In French law, this impossibility is expressly affirmed for the sui generis right of the database producer.
An unspoken exclusion for copyright and other database rights.
In French law, this impossibility is expressly affirmed for the sui generis right of the database producer
An implicit exclusion for copyrights and other databases.
However, the CADA considers that "intellectual property rights held by the administration cannot be an obstacle to reuse", an opinion shared by several authors. The administration must exercise its rights "in such a way as to facilitate the re-use of documents" and given the objective pursued by the opening of public data, it seems that the administration can only be led to exercise its rights in a positive way, i.e. by delivering authorizations.
What about the economic rights of public agents and the rights assigned to the administration?
Public officials, third parties within the meaning of Article L. 321-2 of the Code of Relations between the Public and the Administration.
Except in cases of automatic devolution or contractual transfer of copyright from public officials to the administration, these rights remain in the hands of the public official. However, it must be considered that such public officials are third parties with respect to the administration itself and to the user. In fact, the information contained in documents on which public officials hold intellectual property rights cannot, in the current state of the texts, be considered as public information. However, two cases may allow the reintegration of protected public information produced by a public official into the scope of the right of re-use.
Case of contractual transfer of economic rights to the administration
Except in cases of automatic devolution or contractual transfer of copyright from public officials to the administration, these rights remain in the hands of the public official. In fact, the information contained in documents on which public officials hold intellectual property rights cannot, in the current state of the texts, be considered as public information. However, two cases may allow to reintegrate the protected public information produced by a public servant in the scope of the right of re-use.
Case of automatic devolution of certain patrimonial rights of the public agent to the administration.
Secondly, the public official may have created the administrative document concerned "in the performance of his duties or according to instructions received" and has not transferred his rights to the administration. - Automatic vesting of copyright in favor of the administration "to the extent strictly necessary for the performance of a public service mission". - Content excluded from the perimeter of the right of reuse because it would remain encumbered by intellectual property rights held by the public agent, notably for its commercial reuse. However, the administration would be able to deliver authorizations of re-use within the perimeter of the devolution.
Conclusion
Four hypotheses can therefore be distinguished in practice in the presence of administrative documents created by public officials:
the public official did not create the administrative document concerned "in the exercise of his duties or according to the instructions received" and did not assign his rights to the administration
he then remains the owner of the copyright on this document and it is excluded from the scope of the right of reuse;
the public official created the administrative document "in the performance of his duties or according to instructions received" and did not assign his rights to the administration
an automatic vesting of its copyrights was made to the benefit of its administration "to the extent strictly necessary for the performance of a public service mission". The information contained in this document would in principle not be subject to the principle of free re-use. However, the administration would be able to issue re-use authorizations only to this extent, and it could be argued that it should not be able to oppose them. Any other re-use, on the other hand, could not take place without the authorization of the public official;
the public official has fully assigned his or her economic rights to the administration on the administrative document (whether or not created "in the performance of his or her duties or according to instructions received")
the information contained in the said document is no longer encumbered by intellectual property rights held by third parties and constitutes public information subject to the principle of free re-use;
the public official has assigned or licensed to the administration, for a limited period of time, his or her economic rights to the administrative document (whether or not created "in the performance of his or her duties or according to instructions received")
the information contained in this document would in principle not be subject to the principle of free re-use. However, the administration would be able to issue re-use authorizations within this perimeter and it could be argued that it should not be able to oppose them. Any other re-use, on the other hand, could not take place without the authorization of the public official.
This fact sheet is a joint publication by Vercken & Gaullier and inno³ on behalf of the Digital Society Lab (labo.societenumerique.gouv.fr). Intended to promote the emergence of a common legal doctrine regarding commons produced or supported by the administration, it is addressed to both the actors who are bearers of commons as well as to the people in charge of supporting these approaches. It is intended to be updated according to legislative and jurisprudential developments and to be completed according to contributions and remarks. It does not constitute legal advice and does not replace the opinions that must be sought from the competent persons within each department. Finally, do not hesitate to consult the website http://labo.societenumerique.gouv.fr in order to read the latest versions of these documents, to consult any other resource for public actors wishing to mobilize the potential of the digital commons in their strategy or to contribute to this dynamic.
Legal doctrine applied to digital commons developed under the impetus or with the participation of a public entity
Factsheet 3.4: Intellectual Property Rights & Open Data
The web version proposed here is a simplified version of the data sheet. You can find the complete version, with more details and legal references, on the pdf linked at the bottom of the page.
Référence :
1 - The impact of literary and artistic property rights on the communication and publication of administrative documents
Principle
Administrative documents are communicated or published subject to literary and artistic property rights.
Position of the CADA and the Conseil d'Etat on moral rights
The CADA, following the Conseil d'Etat, considers that it is necessary to obtain the consent of the author beforehand. But these decisions are based only on the moral right of disclosure, and only in the context of a collaboration.
Position of the CADA and the Conseil d'État in matters of economic rights
On the other hand, the CADA seems to implicitly consider that no authorization under the author's economic rights would be necessary for the communication of administrative documents.
Fragility of the position of the CADA and the Conseil d'Etat
This position remains fragile because : The author's other moral rights must also be taken into consideration.
→the communication of documents, as well as their public dissemination, involves performing acts of reproduction and representation ;
→these acts, however, are the monopoly of the author by virtue of his economic rights,
→this assumes authorization from the latter.
Consequences of the existence of literary and artistic property rights
The existence of literary and artistic property rights on administrative documents is thus likely to hinder their free communication or distribution. This means in practice:
→ their communication or dissemination requires the prior authorization of the holders of these rights ;
→that in the absence of such authorization, the administration shall not proceed with such acts and shall refuse requests to that effect made to it ;
→ that in the event of communication or dissemination without such authorization, it could be considered as violating said rights.
Référence :
What about administrative documents created by public officials?
The CADA considers that "the administration does not have to request prior authorization from the public official, or where applicable from his or her beneficiaries, before proceeding with the communication or publication of the document" (with the exception of officials who are authors of works whose disclosure is not subject, by virtue of their status or the rules governing their functions, to any prior control by the hierarchical authority). Furthermore, in the event of communication or dissemination of documents by persons other than the administration employing the public official, authorization from the latter, as the assignee of the economic rights, should in principle be required.
Référence :
2 - Exclusion from the notion of public information of content protected by intellectual property rights held by third parties
Principle
Documents over which third parties hold intellectual property rights are excluded from the definition of public information.
What about the moral rights of authors?
It seems that moral rights should not be considered as an intellectual property right held by a third party, otherwise the directive would be void of substance.
What about the rights held ab initio by the administration?
An exclusion of rights held ab initio by the administration.
The administration may be the owner of literary and artistic property rights ab initio (for example as a database producer or in the case of a collective work). The administration cannot rely on these rights initially held by it to prevent communication or dissemination.
An explicit exclusion for databases whose publication is mandatory
In French law, this impossibility is expressly affirmed for the sui generis right of the database producer.
An unspoken exclusion for copyright and other database rights.
In French law, this impossibility is expressly affirmed for the sui generis right of the database producer
An implicit exclusion for copyrights and other databases.
However, the CADA considers that "intellectual property rights held by the administration cannot be an obstacle to reuse", an opinion shared by several authors. The administration must exercise its rights "in such a way as to facilitate the re-use of documents" and given the objective pursued by the opening of public data, it seems that the administration can only be led to exercise its rights in a positive way, i.e. by delivering authorizations.
What about the economic rights of public agents and the rights assigned to the administration?
Public officials, third parties within the meaning of Article L. 321-2 of the Code of Relations between the Public and the Administration.
Except in cases of automatic devolution or contractual transfer of copyright from public officials to the administration, these rights remain in the hands of the public official. However, it must be considered that such public officials are third parties with respect to the administration itself and to the user. In fact, the information contained in documents on which public officials hold intellectual property rights cannot, in the current state of the texts, be considered as public information. However, two cases may allow the reintegration of protected public information produced by a public official into the scope of the right of re-use.
Case of contractual transfer of economic rights to the administration
Except in cases of automatic devolution or contractual transfer of copyright from public officials to the administration, these rights remain in the hands of the public official. In fact, the information contained in documents on which public officials hold intellectual property rights cannot, in the current state of the texts, be considered as public information. However, two cases may allow to reintegrate the protected public information produced by a public servant in the scope of the right of re-use.
Case of automatic devolution of certain patrimonial rights of the public agent to the administration.
Secondly, the public official may have created the administrative document concerned "in the performance of his duties or according to instructions received" and has not transferred his rights to the administration. - Automatic vesting of copyright in favor of the administration "to the extent strictly necessary for the performance of a public service mission". - Content excluded from the perimeter of the right of reuse because it would remain encumbered by intellectual property rights held by the public agent, notably for its commercial reuse. However, the administration would be able to deliver authorizations of re-use within the perimeter of the devolution.
Conclusion
Four hypotheses can therefore be distinguished in practice in the presence of administrative documents created by public officials:
the public official did not create the administrative document concerned "in the exercise of his duties or according to the instructions received" and did not assign his rights to the administration
he then remains the owner of the copyright on this document and it is excluded from the scope of the right of reuse;
the public official created the administrative document "in the performance of his duties or according to instructions received" and did not assign his rights to the administration
an automatic vesting of its copyrights was made to the benefit of its administration "to the extent strictly necessary for the performance of a public service mission". The information contained in this document would in principle not be subject to the principle of free re-use. However, the administration would be able to issue re-use authorizations only to this extent, and it could be argued that it should not be able to oppose them. Any other re-use, on the other hand, could not take place without the authorization of the public official;
the public official has fully assigned his or her economic rights to the administration on the administrative document (whether or not created "in the performance of his or her duties or according to instructions received")
the information contained in the said document is no longer encumbered by intellectual property rights held by third parties and constitutes public information subject to the principle of free re-use;
the public official has assigned or licensed to the administration, for a limited period of time, his or her economic rights to the administrative document (whether or not created "in the performance of his or her duties or according to instructions received")
the information contained in this document would in principle not be subject to the principle of free re-use. However, the administration would be able to issue re-use authorizations within this perimeter and it could be argued that it should not be able to oppose them. Any other re-use, on the other hand, could not take place without the authorization of the public official.
This fact sheet is a joint publication by Vercken & Gaullier and inno³ on behalf of the Digital Society Lab (labo.societenumerique.gouv.fr). Intended to promote the emergence of a common legal doctrine regarding commons produced or supported by the administration, it is addressed to both the actors who are bearers of commons as well as to the people in charge of supporting these approaches. It is intended to be updated according to legislative and jurisprudential developments and to be completed according to contributions and remarks. It does not constitute legal advice and does not replace the opinions that must be sought from the competent persons within each department. Finally, do not hesitate to consult the website http://labo.societenumerique.gouv.fr in order to read the latest versions of these documents, to consult any other resource for public actors wishing to mobilize the potential of the digital commons in their strategy or to contribute to this dynamic.
