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.
It is necessary to consider first the initial owners of the copyrights before considering in a second step the cases of legal devolution.
Cases of automatic legal vesting of authors' economic rights
Classic case
Except in special cases, authors (natural persons) are vested with the aforementioned copyrights on their works by the sole fact of their creation.
Works of collaboration
Definition
Three conditions must be fulfilled for such a qualification to be made: "Several natural persons (a) must have intervened in the creative process as authors (b) and must have worked together to create a common work (c)".
Diet
It is a system of co-ownership which implies that "[t]he co-authors must exercise their rights by mutual agreement".
Composite works
Definition
In the presence of several authors, the work can also be qualified as a composite work defined as "the new work to which is incorporated a pre-existing work without the collaboration of the author of the latter".
Diet
"The composite work is the property of the author who made it, subject to the rights of the author of the pre-existing work.
Collective works
Definition
"The work created on the initiative of a natural or legal person who publishes it and divulges it under his direction and name and in which the personal contribution of the various authors participating in its elaboration merges into the whole with a view to which it is conceived, without it being possible to attribute to each of them a distinct right in the whole produced.
Diet
A collective work is, "unless proven otherwise, the property of the natural or legal person under whose name it is disclosed" and "that person is vested with the rights of the author".
Cases of automatic legal vesting of authors' economic rights
No impact in principle of an employment or order contract
In principle, the existence of a contract of employment or a contract of order does not entail any derogation from the ownership of rights, but there are exceptions:
→software created by employees of a company or public officials;
→ works created by public officials in the course of their duties or according to instructions received.
The case of software created by employees or public agents
"Unless statutory provisions or stipulations to the contrary exist, the economic rights to software and its documentation created by one or more employees in the performance of their duties or on the instructions of their employer are vested in the employer, who alone is entitled to exercise them. These provisions are also applicable to the employees of the State, of public communities and of public administrative establishments.
The case of works created by public officials
In principle, public officials retain their rights to the works they create. But if the work was created by a public servant in the exercise of his duties or according to instructions received, it follows: There is an "exception to the exception" for " employees 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", the latter remaining masters not only of the enjoyment but also of the exercise of their copyright.
→ a legal assignment of the public official's copyright to the public entity to which the official is attached, when the exploitation is non-commercial;
→ the benefit of a preferential right to the public entity, when the proposed operation is of a commercial nature ;
→ both rights being granted to the public entity only to the extent strictly necessary for the performance of its public service mission,
→ and with the possibility of a profit-sharing payment to the public agent as soon as the public entity "derives an advantage" from the exploitation, commercial or not, of the work.
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 on commons produced or supported by the administration, it is aimed at both the actors who are carriers of commons and 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 people in 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
Technical Sheet 2.1: Identifying copyright owners (except in the case of contractual transfer)
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.
It is necessary to consider first the initial owners of the copyrights before considering in a second step the cases of legal devolution.
Cases of automatic legal vesting of authors' economic rights
Classic case
Except in special cases, authors (natural persons) are vested with the aforementioned copyrights on their works by the sole fact of their creation.
Works of collaboration
Definition
Three conditions must be fulfilled for such a qualification to be made: "Several natural persons (a) must have intervened in the creative process as authors (b) and must have worked together to create a common work (c)".
Diet
It is a system of co-ownership which implies that "[t]he co-authors must exercise their rights by mutual agreement".
Composite works
Definition
In the presence of several authors, the work can also be qualified as a composite work defined as "the new work to which is incorporated a pre-existing work without the collaboration of the author of the latter".
Diet
"The composite work is the property of the author who made it, subject to the rights of the author of the pre-existing work.
Collective works
Definition
"The work created on the initiative of a natural or legal person who publishes it and divulges it under his direction and name and in which the personal contribution of the various authors participating in its elaboration merges into the whole with a view to which it is conceived, without it being possible to attribute to each of them a distinct right in the whole produced.
Diet
A collective work is, "unless proven otherwise, the property of the natural or legal person under whose name it is disclosed" and "that person is vested with the rights of the author".
Cases of automatic legal vesting of authors' economic rights
No impact in principle of an employment or order contract
In principle, the existence of a contract of employment or a contract of order does not entail any derogation from the ownership of rights, but there are exceptions:
→software created by employees of a company or public officials;
→ works created by public officials in the course of their duties or according to instructions received.
The case of software created by employees or public agents
"Unless statutory provisions or stipulations to the contrary exist, the economic rights to software and its documentation created by one or more employees in the performance of their duties or on the instructions of their employer are vested in the employer, who alone is entitled to exercise them. These provisions are also applicable to the employees of the State, of public communities and of public administrative establishments.
The case of works created by public officials
In principle, public officials retain their rights to the works they create. But if the work was created by a public servant in the exercise of his duties or according to instructions received, it follows: There is an "exception to the exception" for " employees 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", the latter remaining masters not only of the enjoyment but also of the exercise of their copyright.
→ a legal assignment of the public official's copyright to the public entity to which the official is attached, when the exploitation is non-commercial;
→ the benefit of a preferential right to the public entity, when the proposed operation is of a commercial nature ;
→ both rights being granted to the public entity only to the extent strictly necessary for the performance of its public service mission,
→ and with the possibility of a profit-sharing payment to the public agent as soon as the public entity "derives an advantage" from the exploitation, commercial or not, of the work.
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 on commons produced or supported by the administration, it is aimed at both the actors who are carriers of commons and 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 people in 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.
