Guide to Copyright in France

Name: Guide to Copyright in France | Business, Internet and Litigation
Brand: Kluwer Law International
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Business, Internet and Litigation

Brad Spitz(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 20. November 2014

272 Seiten

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Cover
Half Title Page
Title Page
Copyright Page
Table of Contents
About the Author
List of Abbreviations
English-French Dictionary
French-English Dictionary
Introduction
I ACCESS TO INFORMATION ON FRENCH LEGISLATION AND CASE LAW
[A] Legislation
[B] French Case Law
II ACCESS TO INFORMATION ON BUSINESS PRACTICES
[A] Information from the Collecting Societies
[1] Music Publishing (SACEM)
[2] Audiovisual Works, Performance Arts, and Illustration
[a] SACD
[b] Scam
[3] Graphic Arts and Photographs
[a] ADAGP
[b] SAIF
[4] Performers' Rights
[a] ADAMI
[b] SPEDIDAM
[5] Producers' Rights
[a] SCPP
[b] SPPF
[c] SCPA
[6] Remuneration Rights
[a] SPRE
[b] Copie France
[c] CFC
III INFORMATION FROM THE PUBLIC ADMINISTRATIVE ORGANISATIONS
[A] CNC and the Public Registry for Films and Audiovisual Works ('RPCA')
[B] HADOPI
[C] CSPLA
[D] CSA
CHAPTER 1 Subsistence of Copyright and Neighbouring Rights
§1.01 SUBSISTENCE OF COPYRIGHT
[A] Formalities
[1] No Formalities in Copyright Law
[2] Legal Deposit
[a] General Rules
[b] Computer Programs and Databases
[c] Internet: Websites, Newsletters and Streaming Media
[d] Films
[B] Condition for Protection: Originality
[1] The General Rule: A Work Is Original If the Creator Has Made Arbitrary Choices
[2] The Main Types of Works Protected by Copyright
[a] Literary, Scientific and Technical Writings
[b] Musical Works
[c] Photographs
[d] Audiovisual Works
[e] Architectural Works
[f] Adaptations and Translations
[g] Plays: Scenography and Stageplay
[h] Conceptual Art
[i] Works of Applied Art, Clothing and Fashion
[j] No Copyright Protection for Perfume
[k] Video Games and Multimedia Works
[l] Websites
[m] Compilations, Anthologies, Databases
[i] Compilations and Anthologies
[ii] Databases
[n] Computer Programs and Software Products
[i] The Computer Program
[ii] The User's Guide
[iii] The Functionality of Computer Programs
[iv] Graphic User Interface
[o] The Title of a Work
[i] Case Law Is Unpredictable
[ii] Recommendation
[3] Originality and Evidence before the French Courts
[a] The Rules
[b] Reality Bites (before the Lower Courts)
[c] Recommendations to Take into Account before Starting a Copyright Infringement Case in France
§1.02 SUBSISTENCE OF NEIGHBOURING RIGHTS
[A] Performers
[1] Definition
[2] Secondary Roles
[3] Television Programmes: Participants and Presenters Are Not Performers
[B] Phonogram Producers
[1] Definition of 'Producer'
[2] Definition of 'Phonograms'
[C] Videogram Producers
[1] Definition of 'Producer'
[2] Definition of 'Videogram'
[D] Broadcasting Organisations
[E] Database Producers
[1] The Producer of a Database
[2] Foreign Database Producers
[F] Producers of Sporting Events
CHAPTER 2 Ownership
§2.01 COPYRIGHT OWNERSHIP
[A] General Rules
[1] The Author Is the Initial Owner
[2] Works of Collaboration
[a] Definition
[b] Co-ownership
[c] Action in Court
[d] Exploitation of Separate Parts of the Work
[e] Radio Works Are Works of Collaboration (Specific System)
[3] Composite Works
[4] Orphan Works
[5] Married Authors
[B] Automatic Assignments
[1] Computer Programs and Documentation Developed by an Employee or by a Civil Servant
[a] The Economic Rights Are Automatically Assigned to the Employer or to the State
[b] The Moral Rights of the Author Are Limited
[c] No Specific Remuneration for the Author, Except for Civil Servants
[2] Works Commissioned under an Advertising Agreement
[3] Audiovisual Works
[a] Audiovisual Works Are Works of Collaboration
[b] Presumptions of Authorship
[c] The Moral Rights of the Authors Are Limited
[i] During the Creation of the Audiovisual Work
[ii] During the Exploitation of the Work
[d] Exploitation of Parts That Can Be Separated from the Audiovisual Work
[4] Works Made by Journalists
[a] The Exploitation within the 'Press Publication' and during the 'Reference Period': Automatic Assignment of Rights
[i] The 'Press Publication' Affected by the Automatic Transfer
[ii] The Journalists Affected by the Automatic Transfer
[iii] No Additional Remuneration during the 'Reference Period'
[iv] Exploitation in the 'Press Publication' after the 'Reference Period': Additional Remuneration but No Individual Agreement
[v] The Author Keeps the Right to Exploit His Works
[b] The Exploitation within the Publications of a Group
[c] The Transfer of the Work to a Third Party
[5] Works Created by Civil Servants
[a] The Economic Rights of Civil Servants
[b] The Moral Rights of Civil Servants
[6] The Digital Exploitation of Unavailable Books
[a] The Compulsory Collective Management System
[i] A Six-Month Opt-Out Period for Rightholders
[ii] After the Opt-Out Period: Right of Preference and Right to Withdraw from the System
[b] Compliance of the Collective Management System with the French Constitution
[c] Permitted Uses for Publicly Accessible Libraries
[C] Presumptions of Ownership
[1] Collective Works
[2] Presumptions of Ownership Created by Case Law to Facilitate Infringement Actions
[D] Issues Relating to Employees
[1] Rules
[2] Recommendation
§2.02 OWNERSHIP OF NEIGHBOURING RIGHTS
[A] The Agreements between Performing Artists and Producers
[1] General Rule: No Presumption or Automatic Assignment
[2] Presumption of Assignment for Audiovisual Agreements
[B] Presumption of Ownership Created by Case Law to Facilitate Infringement Actions
CHAPTER 3 Moral Rights
§3.01 MORAL RIGHTS IN COPYRIGHT
[A] The Right to Paternity and the Right to Integrity
[1] The Right to Paternity
[a] The General Rules
[b] Recommendations
[c] Pseudonymous and Anonymous Works
[2] The Right to Integrity
[a] Physical Integrity
[b] Intellectual Integrity
[3] Characteristics of the Rights to Paternity and to Integrity
[a] During the Author's Lifetime
[i] The Rights Are Attached to the Author
[ii] The Rights Are Perpetual and Imprescriptible
[iii] The Rights May Not Be Transferred or Waived, but They May Be Organised
[b] After the Author's Death
[i] Who Exercises the Rights to Paternity and to Integrity?
[ii] The Rights Are Perpetual and Imprescriptible, but the Right to Integrity Weakens with Time
[c] Foreign Works and Authors in France
[B] Right to Disclose the Work
[1] The Right to Disclose
[2] The Right to Disclose Posthumous Works
[3] The Right to Disclose Is Perpetual
[C] The Right to Reconsider or to Withdraw
§3.02 THE MORAL RIGHTS OF PERFORMERS
[A] Right to Paternity
[B] Right to Integrity
[C] No Other Rights
[D] The Characteristics of the Moral Rights of Performers
CHAPTER 4 Economic Rights
§4.01 ECONOMIC RIGHTS IN COPYRIGHT
[A] The Exclusive Rights: The Right of Reproduction and the Right of Communication to the Public (Right of Performance)
[1] The Right of Reproduction
[a] General Features of the Right of Reproduction
[b] The Right of Reproduction of the Author of a Computer Program
[i] Corrections, Back Copies and Analysis
[ii] Decompilation to Ensure Interoperability
[iii] The Interpretation of the Limitations to the Author's Rights
[iv] The Pledge of the Rights to a Computer Program ('Nantissement')
[c] Distribution Right and the Exhaustion of Rights (First Sale Doctrine)
[d] Rental and Lending Rights
[i] The Rental Right
[ii] The Public Lending Right
[2] The Right of Performance (Right of Communication to the Public)
[a] The Right of Performance
[i] Definition
[ii] The Public in Question
[iii] Hyperlinks
[b] The Right of Communication to the Public of a Work Broadcast by Satellite
[c] The Right of Communication to the Public of a Work Broadcast by Cable
[B] The Resale Right ('Le Droit de Suite')
[1] Definition and Scope of the Resale Right
[2] The Beneficiaries of the Resale Right
[3] The Works Subject to Payment
[4] The Calculation of the Fees
[5] The Persons Subject to Payment
[6] Information and Payment
[C] Remuneration for Private Copying (Also Concerns Neighbouring Rights)
[1] The Beneficiaries
[2] The Amount and Distribution of the Compensation
[3] The Persons Subject to Payment
[4] Exceptions
[D] Remuneration for Photocopying
§4.02 ECONOMIC RIGHTS IN NEIGHBOURING RIGHTS
[A] EU Exhaustion of Rights
[B] The Rights of Performers
[C] The Rights of Phonogram Producers
[D] Compulsory Licence for Performers and Phonogram Producers
[1] The Scope of the Licence
[2] The Remuneration
[3] International Issues
[E] The Remuneration for Private Copying
[F] The Rights of Videogram Producers
[G] The Rights of Broadcasting Organisations
[H] Satellite Broadcasting and Cable Retransmission
[1] Satellite Broadcasting
[2] Cable Retransmission
[I] The Sui Generis Rights of Database Producers
[1] 'Extraction' and 'Re-utilisation'
[2] A 'Substantial Part'
[3] Meta Search Engines
[4] Prohibition of Excessive Royalties in Licence Agreements
[J] The Rights of Producers of Sporting Events
§4.03 PROTECTION OF TECHNICAL MEASURES AND RIGHTS-MANAGEMENT INFORMATION
[A] The Protection of Effective Technical Measures
[1] Prohibited Acts and Sanctions
[2] Technical Measures and Exceptions
[a] The Protection of Certain Exceptions
[b] Protection Afforded to the Exceptions
[c] The Role of the Haute Autorité (HADOPI)
[3] Technical Measures and Interoperability
[B] Rights-Management Information
§4.04 DURATION OF ECONOMIC RIGHTS
[A] Duration of Copyright
[1] General Rules
[a] Duration of Seventy Years Post-mortem
[b] Copyright Restoration
[2] Works of Collaboration
[3] Pseudonymous, Anonymous and Collective Works
[4] Posthumous Works
[5] Extensions of Copyright in Order to Take into Account Wars
[6] The Duration of the Resale Right
[7] Foreign Works
[8] The Public Domain
[B] Duration of Neighbouring Rights
§4.05 EXCEPTIONS TO COPYRIGHT AND NEIGHBOURING RIGHTS
[A] General Rules
[1] Exceptions Must Be Construed Restrictively
[2] The Three-Step Test
[3] Moral Rights
[4] Exceptions and Technical Measures
[B] The Exceptions to Copyright and Neighbouring Rights
[1] Performances within the Family Circle
[2] The Private Copying Exception
[3] Temporary Acts of Reproduction
[4] Analyses and Quotations
[a] The Quotation Must Be Short
[b] The Purpose and Character of the Quotation
[5] Incidental Uses
[6] Use of Excerpts of Sporting Events
[7] Press Reviews
[8] Speeches
[9] Work Intended to Be Reproduced in the Catalogue of a Judicial Sale
[10] Exception for Educational Purposes
[11] Parody, Pastiche and Caricature
[a] Freedom to Parody in Accordance with the 'Rules of the Genre'
[b] The Second Work Must Respect the Parodied Work or Subject-Matter
[i] Identification of the Parodied Work or Subject-Matter
[ii] Absence of Any Denigration of the First Work or Subject-Matter or Its Author
[iii] The Second Work or Subject-Matter Must Be Separate from the First Work or Subject-Matter
[12] Access to the Contents of an Electronic Database
[13] Exception for the Benefit of People with a Disability
[14] Conservation and Consultation
[15] Information of the Public
[16] Works Used for Judicial and Administrative Procedures, Patents, Parliamentary Speeches, Etc.
CHAPTER 5 Exploitation and Contracts
§5.01 CONTRACTS AND COLLECTIVE MANAGEMENT: APPLICABLE RULES
[A] Contracts
[1] General Contract Law Applicable to Copyright and Neighbouring Rights Agreements
[a] Requisites for the Validity of Agreements
[i] Consent
[ii] Deception
[iii] Formal Requirements
[b] Transfer of Acquired Rights to Third Parties
[c] Damages for Non-performance
[d] Unforeseen Circumstances
[e] Bankruptcy of the Assignee
[f] Termination for Breach of Contract
[2] Specific Rules Applicable to Copyright Agreements
[a] The Prohibition of a General Assignment of Future Works
[b] Situations in Which the Agreements Have to Be in Writing
[c] The Rights Assigned Must Be Defined Precisely
[i] The Assigned Rights
[ii] Duration of the Assignment and French-Style Perpetuity
[iii] The Territory of the Assignment
[d] Remuneration
[i] Assignments Free of Charge
[ii] General Rule: Royalties Based on the Exploitation of the Work
[iii] The Basis of Calculation
[iv] The Percentage
[v] Exception to the General Rule: Fixed Royalties in the Form of a Lump Sum
[e] VAT Payable on Royalties Paid to Authors
[i] Withholding Tax System on Royalties
[ii] How the System Works
[iii] The Authors May Waive the System
[iv] Contractual Clause
[f] Unforeseen Forms of Exploitation at the Date of the Agreement
[g] The Assignee Must Exploit the Work
[h] Information on the Technical Measures Likely to Be Implemented
[i] Applicable Law
[j] Interpretation of Copyright Agreements
[3] Publishing Agreements
[a] Definition
[b] Parties to the Agreement and Assignment of the Publishing Agreement
[c] Remuneration
[d] Obligations of the Author
[e] Obligations of the Publisher
[i] Exploitation
[ii] Quantity of Copies to Be Manufactured
[iii] Moral Rights
[iv] Statements and Accounts
[v] Audit and Justifications
[f] Priority Right on Future Works ('Pactes de Préférence')
[i] Specified Genres
[ii] The Works Covered by the Priority Right
[iii] Exercising the Option
[iv] Agreement Model: Example of an Exclusive Songwriter's Agreement (with a Band)
[g] Assignment of the Publishing Agreement to Third Parties
[h] Termination of the Publishing Agreement: Sell-Off Period
[i] Bankruptcy of the Publisher
[4] Contracts for the Public Performance of Works
[5] Contracts between Producers and Performers
[a] Formal Requirements, Nature of Contracts and Applicable Law
[b] Remuneration
[i] General Rules
[ii] Audiovisual Sector
[iii] Music Sector
[B] Collective Management
[1] General Rules
[a] Collecting Societies in France Are of a Civil Nature
[b] The Collection of Royalties
[i] Contracts with the Users
[ii] Legal Action
[c] Obligations of the Collecting Societies
[i] Compliance with Competition Law
[ii] Reduced Fees for Associations of General Interest
[iii] Measures to Assist Creation, Live Performances and the Training of Artists
[d] The Control of the Collecting Societies
[2] The Role of the Collecting Societies in the Music and Audiovisual Sectors
[a] In the Music Sector
[i] Copyright
[ii] Neighbouring Rights
[b] In the Audiovisual Sector
[i] Authors
[ii] Performers
§5.02 CONTRACTUAL PRACTICE
[A] Music Publishing
[1] Publishing Agreements
[a] General Assignment Clauses
[b] Assignment of the Reproduction Right
[c] Exploitation by the Publisher
[d] Assignment of the Performance Right
[e] Exploitation Abroad / Sub-publishing
[f] Remuneration of the Author for Direct Exploitation by the Publisher
[g] Accounts
[2] Audiovisual Adaptation: A Separate Agreement from the Publishing Agreement
[B] Audiovisual Works: Copyright Assignment Agreements
[1] Television Works
[a] The Agreement for the Assignment of Copyright
[i] Assignment of Rights
[ii] Duration of the Assignment
[iii] Proportional Remuneration
[iv] Exploitation through TV Broadcasting (Including VOD)
[v] Secondary Exploitations
[vi] Merchandising
[vii] A Fixed Remuneration and/or an Advance
[viii] Other Remunerations
[ix] The Definition of the Producer's Net Receipts
[x] Arbitration Clause
[b] The Labour Law Agreement
[2] Cinema
[a] Exploitation in the Movie Theatres
[b] Videograms
[i] The Determination of the 'Producer's Net Receipts'
[ii] Additional Royalties after Amortisation of the Cost of the Film
CHAPTER 6 Litigation
§6.01 CIVIL PROCEDURE APPLICABLE IN ALL CASES
[A] Burden of Proof
[1] General Rule: The Parties Have to Prove Their Claim
[2] Access to Evidence and Information
[a] The Evidence Must Be Disclosed during the Pre-trial Phase
[b] Investigations before the Commencement of Legal Proceedings
[c] Investigations during the Proceedings
[i] Evidence Held by the Parties
[ii] Evidence Held by Third Parties
[d] Inquiry Measures
[e] Affidavits
[B] Fighting the Cases in Court
[1] Urgency Proceedings
[a] Summary Proceedings
[i] Situations in Which the Plaintiff May Claim an Interim Injunction
[ii] Urgent Measures
[iii] Protective Measures and Measures to Restore
[iv] Provisional Damages or Payment
[v] The Procedure
[b] Urgency Proceedings on the Merits
[2] Proceedings on the Merits
[a] Proceedings before the Court of First Instance
[i] Procedure before the High Court of First Instance
[ii] Procedure before the Commercial Court
[iii] Lack of Jurisdiction and Procedural Arguments Raised by the Parties
[iv] Pleas of Non-admissibility
[b] Appeal
[3] The Supreme Court
[C] Costs of Actions
[1] Legal Costs (Taxable Charges)
[2] Charges Not Included in the Legal Costs
[3] Contingency Fees: Prohibition of 'Quota Litis' Agreements
§6.02 PROCEDURES SPECIFIC TO INFRINGEMENT CASES
[A] Evidence Gathering
[1] Infringement Seizure ('Saisie-Contrefaçon')
[a] The President's Order
[i] Works and Subject-Matters Protected by Neighbouring Rights
[ii] Computer Programs and Databases
[iii] The Procedure in Practice
[b] Rights and Guarantees of the Distrainee
[i] Financial Guarantee
[ii] Lifting the Seizure
[iii] Time Limit for Taking Action
[2] Customs Authorities
[a] Customs Detention of Goods at the Request of the Rightholders
[b] Customs Detention of Goods in the Absence of a Request from the Rightholder
[3] Evidence-Securing on the Internet
[a] Bailiff's Report
[b] Sworn Agents
[c] Information from Internet Intermediaries
[4] Investigations during the Proceedings
[B] Civil Procedure in Infringement Cases
[1] The Infringement Acts
[a] Copyright and Neighbouring Rights
[i] The Infringing Acts
[ii] Intention
[b] Unfair Competition (Tort)
[2] Locus Standi
[a] The Rightholders
[i] Authors, Performers and Producers
[ii] Licencees and Distributors
[iii] Foreign Rightholders
[b] Collecting Societies and Trade Unions
[3] Jurisdiction
[a] Specialised Courts
[b] General Jurisdiction Rules
[c] Internet Sites Abroad Accessible in France
[4] Applicable Law
[a] Contracts
[b] International Infringement Cases
[5] Time Limitation in Infringement Cases
[6] Remedies
[a] Damages
[i] Protective Measures
[ii] The Evaluation of the Damages
[iii] Alternative to the Assessment of Damages: Lump Sum
[iv] Additional Damages: The Proceeds of the Infringement
[b] Additional Remedies: Confiscation and Publicity
[C] Penal Provisions
[1] The Infringement Acts and Sanctions
[a] Infringement of Copyright and Neighbouring Rights
[b] Computer Programs Manifestly Intended to Communicate Unauthorised Works to the Public
[c] Protection of Technical Measures
[d] Additional Sanctions
[i] Closure of the Establishment
[ii] Confiscation, Destruction and Publicity
[iii] Suspension of Internet Access
[iv] The Existence of an Agreement between the Victim and the Infringer
[e] Sanctions Specific to Legal Entities
[2] The Intention
[3] Prescription
[D] The Prevention of Infringement on the Internet
[1] The Prevention of Unlawful Downloading and Communication to the Public
[a] Computer Programs Used for Infringement Acts
[b] Internet Services Used for Infringement Acts
[2] Liability of Internet Users
[3] Liability of Intermediary Service Providers
[a] ISPs
[b] Hosting Providers
[i] Limitation of Liability
[ii] Notice to Take Down
[iii] No Stay Down Obligation
Bibliography
Index
Back Cover

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