One of the striking features of French copyright law is the protection it affords to authors in their contractual dealings with would-be licensees and assignees.
One of the key statutory provisions that contributes to this high level of protection is Section L.131-2 of the Intellectual Property Code (IPC), which until recently provided as follows:
"Contracts for public performance, publishing contracts, and audio-visual production contracts defined in this Section shall be in writing, as shall be free authorizations to publicly perform.
In all other cases, the provisions of Sections 1341 to 1348 of the Civil Code shall apply."
This provision sets out a rule whereby certain named contracts (viz., public performance, publishing and audio-visual production contracts) must be in writing. (To this list must also be added, pursuant to a different section of the Code, contracts for the acquisition of audio-visual adaptation rights of a literary work).
Courts have long recognized that the requirement for a written instrument under Section L.131-2 IPC is merely for evidentiary purposes (ad probationem ) and not for the contract's validity (ad validitatem).
In all other cases, the ordinary rules of evidence under the Civil Code apply. However, it should be noted that even in such cases, a written instrument is highly recommended in light of other formal requirements (set out particularly in Section L.131-3 IPC).
The Act of 7 July 2016 added a new paragraph so that Section L.131-2 IPC now reads as follows:
"Contracts for public performance, publishing contracts, and audio-visual production contracts defined in this Section shall be in writing as shall be free authorization to publicly perform.
Contracts under which copyright is transferred shall be in writing.
In all other cases, the provisions of Sections 1341 to 1348 of the Civil Code shall apply."
The introduction of the new second paragraph left many wondering what the scope of the final paragraph would now be.
A written question on this issue was thus put to the Minister of Culture who replied on January 11th last.
In essence, she confirms that the rule embodied in Section L.131-2 IPC is an evidentiary one (and not for validity). She goes on to say that the second paragraph was enacted to protect authors of graphic, artistic and visual works.
As for the question of what then is left for the final paragraph, the Minister suggests that it applies only to works of industrial applied art, i.e. works intended to be used as utilitarian products that could also, in theory, be protected by a design and model right.
Only time will tell whether the French courts agree with the Minister's interpretation.
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