Intellectual property lawyer in Paris, patent law: Can software be patented?

by | Mar 10, 2023

Update: Nov. 2, 2022

 A lawyer specializing in patent and industrial property law informs you.

 

What inventions are not patentable?

According to L611-10 of the Intellectual Property Code: 

1. New inventions involving an inventive step and capable of industrial application shall be patentable in all fields of technology.

2. The following in particular shall not be considered as inventions within the meaning of the first paragraph of this Article

a) Discoveries and scientific theories and mathematical methods;

b) Aesthetic creations ;

c) Plans, principles and methods in the exercise of intellectual activities, in the field of gambling or in the field of economic activities, as well as computer programs;

d) Information presentations.

3. The provisions of paragraph 2 of this Article shall exclude the patentability of the elements listed in those provisions only to the extent that the patent application or patent relates to one of those elements as such.

4. Subject to the provisions of Articles L. 611-16 to L. 611-19, inventions relating to a product consisting wholly or partly of biological material, or to a process for the production, treatment or use of biological material, shall be patentable under the conditions laid down in paragraph 1.

Biological material is considered to be material that contains genetic information and can reproduce itself or be reproduced in a biological system.

 

In general, the criteria for patentability of computer inventions are the same as those for other fields of technology. However, there are specific considerations for computer inventions, notably whether an invention is considered pure software or whether there is sufficient interaction with the physical world for it to be considered a computer system or apparatus.

The following are some of the common patentability criteria for computer-related inventions:

Novelty: The invention must be new and not have been disclosed to the public before the patent application. This means that the invention must be considered completely new and original.

Inventive step: The invention must involve some inventive step beyond the mere application of well-known knowledge or techniques. The invention must involve a creative or innovative contribution to the state of the art.

Industrial application: The invention must have an industrial application, i.e. it must be capable of being used in a commercial or industrial context.

Clarity and conciseness: The patent application must be clear and concise, so that the claims of the invention are easily understood by a person skilled in the relevant technical field.

Non-obviousness: The invention must not be obvious to a person skilled in the relevant technical field.

It should be noted that software-related inventions may be more difficult to patent due to specific patentability requirements. In some countries, pure software inventions may not be patentable at all, while in others, sufficient interaction with the physical world may be required for an invention to be considered patentable.

 

Can information presentation software be patented?

Software is traditionally protected by copyright, as chosen by the legislator (law of 3 July 1985) and the European treaties.

Information presentation software does not a priori have such a technical character. It is excluded from patentability by Article L611-10, 2), c) and d) of the Intellectual Property Code.

 It is "pure" software, a bit like a word processor, a man-machine interface, with no particular technical effect, capable of solving a technical problem, of exerting a force.

On 11 Jan. 2023, the Court of Cassation issued several rulings on the subject, which may seem contradictory.

In No. 20-10.935 (rejection), the Court of Cassation is in favour of patentability and accepts the technical nature of information presentation software.

In No. 19-19.567 (cassation), the Court did not agree, and asked that the technical nature of the invention be demonstrated, again in relation to information presentation software.

 

See as well :

How to protect software?

Stone of Roquefeuil, patent attorney at Paris accompanies you to defend your interests and those of your company.

 

See as well :

Counterfeiting: how to react?

Contact

Damages for invasion of privacy in the context of sexual assault, the lawyer specialised in media and internet law in Paris answers you

by | Mar 10, 2023

What does the law say about invasion of privacy and sexual assault?

Article 39 quinquies of the French Freedom of the Press Act of 1881 provides for a special procedure for persons who believe they have been the victims of revelations in a newspaper or other medium.

Under this article, the person can ask the judge to order the author of the article to pay a fine and damages (civil action adjoining the public action) without having to prove the damage suffered. The amount of damages is determined by the judge according to the circumstances of the case.

It should be noted that this procedure is only available for acts committed through the press, and not for other types of disclosure such as verbal disclosure.

The press procedure is a special and criminal procedure governed by the short statute of limitations of three months.

Under press law, legal persons cannot be held criminally liable, but they can be sued for damages (civil liability) incurred by their employees.

Article 9 of the Civil Code on the protection of privacy allows for a civil liability claim for damages (five-year limitation period).

Other criminal or civil qualifications can be sought: articles 226-1 and following of the penal code; 

In criminal matters (excluding press law), companies can be held liable, and the fine incurred is 5 times that incurred for natural persons.

Criminal or civil proceedings?

Criminal prosecution (public action) allows the police to be called in to identify the perpetrators; the public action escapes the prosecuting party, except in the case of the press, where a transaction allows the action to be extinguished.

Civil proceedings are aimed at obtaining damages and can be conducted independently of public proceedings, except for certain offences.

Short circuit or long circuit?

The short circuit is preferred in cases where speed is required. The "accelerated procedure on the merits" allows action to be taken on internet content.

Privacy" or "press" basis?

The press procedure is entrapment, subject to a short statute of limitations, and is necessary for press offences.

Invasion of privacy is not a 'press offence' but the opponent will tend to show otherwise.

The Press Act (39 quinquies of the amended 1881 Act, cited below) provides for a fine of EUR 15,000 against a weak individual.

Article 39 quinquies Version in force since 01 January 2002

Modified by Ordinance n°2000-916 of 19 September 2000 - art. 3 (V) JORF 22 September 2000 in force on 1 January 2002

Disseminating, by any means and through any medium, information concerning the identity of a victim of sexual assault or abuse or the image of such a victim when identifiable is punishable by a fine of

The provisions of this Article shall not apply where the victim has given written consent.

These provisions are mainly justified by taking into account the interests of the victim. Therefore, publications mentioning the identity of the latter are authorised subject to written agreement (L. 29 July 1881, Art. 39 quinquies, para. 2, same text).

. - Articulation between Article 39 quinquies of the Law of 29 July 1881 and Article 9 of the Civil Code

It follows from the combination of Article 39 quinquies of the Law of 29 July 1881 and Article 9 of the Civil Code that, while the dissemination of the identity of a person and the sexual nature of the crimes or offences of which he or she was a victim is prosecuted on the basis of Article 39 quinquies of the Law of 29 July 1881, the disclosure, without the consent of the person concerned, of information relating to the precise circumstances in which these offences were committed is a separate act constituting an invasion of his or her privacy, the disclosure, without the consent of the person concerned, of information relating to the precise circumstances in which these offences were committed is a distinct fact constituting an infringement of his or her privacy, which may be punished on the basis of Article 9 of the Civil Code (Cass. 1st Civ, 9 September 2020, n° 19-16.415: JurisData n° 2020- 012860).

 

Is compensation possible?

In general, damages for attempted invasion of privacy and for the identification of victims of sexual harassment will vary according to the particular circumstances of each case. However, some general principles that may apply are

  1. Attempted invasion of privacy: If someone attempts to invade another person's privacy, but is unsuccessful, the victim may still be entitled to damages. These damages may include compensation for emotional distress and mental anguish, as well as any other harm caused by the attempt. The exact amount of damages will depend on the seriousness of the attempted invasion of privacy and the harm suffered by the victim.
  1. Identification of victims of sexual harassment: If someone reveals the identity of a victim of sexual harassment, the victim may be entitled to damages. These damages may include compensation for emotional distress, mental anguish and any harm caused by the disclosure of their identity, such as damage to their reputation or loss of earnings. The exact amount of damages will depend on the severity of the harm caused by the disclosure and the particular circumstances of the case.

It is important to note that damages for attempted invasion of privacy or identification of victims of sexual harassment may vary depending on the jurisdiction and laws applicable to the case. 

 

It is advisable to consult a lawyer specialising in press, media and internet law in Paris to determine your legal rights and options. Roquefeuil Avocats will assist you.

See as well :

Right to be forgotten, privacy, Roquefeuil Avocats can help you

Contact

Counterfeiting: how to react: the intellectual property lawyer in Paris answers

by | Feb 27, 2023

Copyright, Trademarks, Patents, Designs and Models how to sue or defend yourself in case of suspected infringement? The intellectual property lawyer in Paris will inform and advise you.

 

Patents, copyrights, trademarks, designs and models are intellectual property rights; the list is not exhaustive.

They are registered with intellectual property offices, and it is their registration with these offices that establishes their existence, except in the case of copyright, which can be proven by any means.

Registration with the offices is not a guarantee of the validity of the title. Your title may therefore be declared invalid by a court if it does not meet the required conditions of validity.

Should civil or criminal proceedings be used to stop and punish counterfeiting?

The criminal route implies that the public prosecutor, in charge of defending public order and society in general, takes charge of the case: the prosecutor therefore no longer has control over his or her case in order to settle a dispute.

In addition, in the context of criminal proceedings, the prosecutor must prove the intention to infringe, which can be difficult to prove.

The civil route avoids these disadvantages.

On the other hand, when there is mass counterfeiting or when the counterfeiters are not immediately identifiable, the criminal route may be preferred, which makes it possible to implement means of investigation and action such as customs and judicial police.

 

Counterfeit : 

What can be asked?

If your work, productions or signs are copied, you can sue the copier for counterfeiting or unfair competition (parasitism).

It is of course advisable to call on a lawyer specialising in intellectual property law to analyse the situation and determine the conditions under which you can proceed. 

Not all copying is actionable, and the scope of what you can claim (bans, compensation) is variable.

You can also request preventive prohibition measures, seizures, measures to produce information on the extent of the infringement.

Some fifteen directives and two regulations of the European Union apply to copyright. These texts implement the international treaties that exist on the subject (WIPO, APDIC, Rome, Berne).

In France, Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the digital single market and amending Directives 96/9/EC and 2001/29/EC, ("DANUM" Directive), has been transposed 

 

  • by Order No 2021-580 of 12 May 2021 as regards Articles 13 and 17: "providers of online content sharing services" may be liable for infringing content uploaded by their users;

 

  • by Law 2019-775 as regards Article 15, by creating a neighbouring right for the benefit of press agencies and publishers

 

The principles are the same for trademarks, patents and designs.

 

Counterfeiting: What are the defences?

A person suspected of infringement may defend himself by stating 

  • that he is the legitimate holder or user of the right (ownership dispute);
  • that the right being challenged is invalid, outdated or not applicable (e.g. outside the territory);
  • that it benefits from the application of an exception; 
  • (reduces the attack) that the infringement does not cause harm; 

 

Roquefeuil avocats, a law firm specialising in intellectual property law, can assist you in these matters.

See as well : Assignment of copyright

Remuneration for work and payment of royalties, the issues – the lawyer in intellectual property law answers

Patent: is software patentable?

 

Apart from intellectual property infringement, what can be sued, how to defend the intangible assets of the company? : 

 

Intellectual property can only sanction certain acts, and cannot prevent free competition.

A company may seek to protect its assets in areas other than intellectual property: 

  • action for unfair competition and parasitism ;
  • violation of trade secrets, business secrets ; 
  • breach of contract ...

 

Contact

Defamation, insult, contempt, denunciation, false testimony: be assisted by a lawyer in criminal communication law in Paris

by | Feb 16, 2023

Texts and sanctions, prescriptions, means of defence:

Defamation and insult are so-called “press” offenses subject to a special and tricky procedure intended to preserve freedom of expression and to discourage those who want to have harmful content removed or sanctioned.

For example, the limitation period for initiating proceedings is in principle three months, beyond which the action is prescribed.

It is the law of July 29, 1881 on the freedom of the press which provides for and punishes these offences.

Section 29

Amended by Ordinance of May 6, 1944 – art. 4

Any allegation or imputation of a fact which undermines the honor or consideration of the person or body to which the fact is imputed is defamation. The direct publication or by way of reproduction of this allegation or this imputation is punishable, even if it is made in doubtful form or if it targets a person or a body not expressly named, but whose identification is made possible by the terms speeches, cries, threats, writings or printed matter, placards or posters incriminated.

Any outrageous expression, terms of contempt or invective which does not contain the imputation of any fact is an insult.

Section 32

Amended by LAW n°2019-222 of March 23, 2019 – art. 71 (V)

Defamation committed against individuals by one of the means set out in article 23 will be punished by a fine of 12,000 euros.

Defamation committed by the same means against a person or a group of persons on the basis of their origin or their membership or their non-membership of an ethnic group, nation, race or religion determined will be punished by one year. imprisonment and a fine of 45,000 euros or only one of these two penalties.

Defamation committed by the same means against a person or a group of persons on the basis of their sex, their sexual orientation or gender identity or their disability will be punished with the penalties provided for in the preceding paragraph.

In the event of conviction for one of the facts provided for in the two preceding paragraphs, the court may also order:

1° The posting or dissemination of the decision pronounced under the conditions provided for by Rule 131-35 the penal code;

 

Defamation: how is it punished? how to defend yourself?

The defenses are:

  • the truth of the facts
  • good faith
  • the non-defamatory fact, not detrimental to honor and consideration
  • the absence of specific facts, the expression of an opinion or an insult

When the facts reveal discrimination, police custody and immediate appearance are incurred (induced by the one-year prison sentence). CRPC is excluded.

Pre-trial detention is not envisaged, in principle. (the warrant must be strictly necessary for the investigation and proportionate to the seriousness of the offense (CA Paris, 4th ch. int., May 15, 2009 no. 2008/06790 : Com. com. electr. 2010, chrono. 3, No. 12, obs. C. Bigot).

The summary procedure can be used to alleviate the urgency, as well as the accelerated procedure on the merits provided for by article 6.I.8 paragraph 1 of law n° 2004-575 of June 21, 2004 on confidence in the digital economy.

The right of reply and the sanction of the refusal of the right of reply make it possible to accelerate the possibilities of dispute.

The judgments often state in the preamble of their motivation and in a synthetic way:

– article 29 paragraph 1 of the law of July 29, 1881 defines defamation
such as the direct publication or by way of reproduction of “any
allegation or imputation of a fact which undermines the honor or
consideration of the person or body to which the act is attributed”;
– the person or body to which the act is attributed must be
expressly named or failing that, their identification must be made
possible by the terms used or their intrinsic circumstances or
extrinsic;
– it must be a specific fact, likely to be the subject of debate
contradictory on the proof of its truth, which thus distinguishes the
defamation, on the one hand, insult - characterized, according to the second
paragraph of article 29, by “any offensive expression, terms of
contempt or invective which does not contain the imputation of any fact ”- and,
on the other hand, from the subjective expression of an opinion or judgment
of value, the relevance of which can be freely discussed within the framework
of a debate of ideas but whose truth cannot be proven;
– the honor and consideration of the person should not
to appreciate according to the personal and subjective conceptions of this one,
but according to objective criteria and the general reprobation
caused by the disputed allegation, that the imputed fact is criminally
reprehensible or manifestly contrary to the rules of morality
commonly accepted;
– defamation, which may be in the form of allusion or
of insinuation, must be assessed taking into account the elements
intrinsic and extrinsic to the medium in question, namely both the
the very content of the remarks and of the context in which they take place;
– these provisions apply in civil matters, including before the
President of the Court.

 

The insult:

Section 33

Amended by LAW n°2021-1109 of August 24, 2021 – art. 38

Insult committed by the same means against the bodies or persons designated by articles 30 and 31 of this law will be punished by a fine of 12,000 euros.

The insult committed in the same way towards individuals, when it has not been preceded by provocations, will be punished by a fine of 12,000 euros.

Shall be punished by one year's imprisonment and a fine of 45,000 euros for insults committed by the same means against a person or a group of persons on the basis of their origin or their membership or non-membership of a ethnicity, nation, race or religion.

Insults committed under the same conditions against a person or a group of persons on the basis of their sex, their sexual orientation or gender identity or their disability will be punished with the penalties provided for in the preceding paragraph.

When the acts mentioned in the third and fourth paragraphs of this article are committed by a person vested with public authority or charged with a public service mission in the exercise or on the occasion of the exercise of his functions or his mission, the penalties are increased to three years' imprisonment and a fine of 75,000 euros.

In the event of conviction for one of the acts provided for in the third and fourth paragraphs, the court may also order:

1° The posting or dissemination of the decision pronounced under the conditions provided for by Article 131-35 of the Criminal Code;

2° (Repealed).

 

Many special regimes exist (offences involving acts against the authorities, or racial or sexist discrimination, etc.)

Defamation and insults can be prosecuted within the framework of criminal and civil proceedings, referral to an examining magistrate allows in principle a more active search for anonymous perpetrators.

The withdrawal stops the prosecution (art.49).

Our article: Online insult: check the definition

Defamation and non-public insults are less severely sanctioned.

Article R621-1

Non-public defamation of a person is punishable by the fine provided for 1st class offenses (38 euros).

The truth of defamatory facts can be established in accordance with the legislative provisions relating to the freedom of the press.

Article R621-2

Non-public insult towards a person, when it has not been preceded by provocation, is punished by the fine provided for 1st class fines (38 euros).

The Roquefeuil firm specializing in media and digital technology supports you in legal proceedings or in defense on these issues of defamation and insult – make an appointment.

Communication or verbal or written expression in general nevertheless gives rise to other forms of offenses which do not come under the press regime and are covered by civil law or criminal law, or commercial case law. Thus, commercial disparagement is sanctioned civilly, in the field of unfair competition, and makes it possible to prosecute acts aimed at discrediting the competitor with a view to undermining his commercial activity.

Our article: The negative opinion: the Roquefeuil firm responds

Contempt: how is it sanctioned? how to defend yourself?

Contempt is provided for and punished by the penal code:

Section 433-5

Amended by LAW n°2021-1520 of November 25, 2021 – art. 55

Words, gestures or threats, writings or images of any kind not made public or the sending of any objects whatsoever addressed to a person charged with a public service mission, in exercise or on the occasion of the exercise of its mission, and likely to affect its dignity or the respect due to the function with which it is invested.

When it is addressed to a person holding public authority, to a firefighter or to a marine-firefighter in the exercise or on the occasion of the exercise of his missions, the contempt is punished by one year's imprisonment and a fine of 15,000 euros.

When it is addressed to a person in charge of a public service mission and that the acts were committed inside a school or educational establishment, or, on the occasion of the entrances or exits of the pupils, in the surroundings of such an establishment, contempt is punishable by six months' imprisonment and a fine of 7,500 euros.

When committed in a meeting, the contempt provided for in the first paragraph is punishable by six months' imprisonment and a fine of 7,500 euros, and the contempt provided for in the second paragraph is punished by two years' imprisonment and 30,000 euro fine.

 

Section 433-5-1

Creation Law n°2003-239 of March 18, 2003 – art. 113 () JORF March 19, 2003

The act, during a demonstration organized or regulated by the public authorities, of publicly insulting the national anthem or the tricolor flag is punished by a fine of 7,500 euros.

When committed in a meeting, this outrage is punishable by six months' imprisonment and a fine of 7,500 euros.

The threshold of 6 months imprisonment triggers the possibility of custody and immediate appearance.

The outrage is directed against authority, and is not committed by way of public diffusion.

The Constitutional Council (Cons. const. 9 Apr. 2021, n° 2021-896 QPC) notes that "the same statement made publicly against a person entrusted with a public service mission or depositary of the public authority may constitute a public contempt or insult”. However, it notes that, if it is a question of an attack on the dignity of the functions in the two cases, this attack is different since the contempt must, to be punishable, according to the constant case law of the Court of Cassation, be addressed directly to the offended person or proceed from a desire that the remarks be reported to him by a person present. In other words, contempt is only punishable if it affects the holder of the office. Conversely, public insult does not have to be addressed directly to the person concerned or intended to be reported to him. The two acts being of a different nature, the principle of equality before the law is preserved.

Contempt presupposes a direct relationship, a form of verbal, almost physical aggression. The public insult is addressed in the first place to an audience which is not the person insulted.

it is also necessary to compare the following offences, which appear from the same register:

Slanderous denunciation: how is it sanctioned? how to defend yourself?

According to article 226-10 of the penal code: 

“Rule 226-10 version in force since December 11, 2016, Amended by Decision no. 2016-741 DC of December 8, 2016 – art. 4, c. initiate.

The denunciation, made by any means and directed against a specific person, of a fact which is likely to entail legal sanctions, administrative or disciplinary and that we know to be totally or partially inaccurate, when it is addressed either to a judicial or administrative or judicial police officer, either to an authority with the power to act on it or to seize the competent authority, either to the hierarchical superiors or to the employer of the denounced person is punished by five years' imprisonment and a fine of 45,000 euros.

The falsity of the fact denounced necessarily results from the decision, which has become final, of acquittal, acquittal or dismissal, declaring that the fact was not committed or that it is not attributable to the person denounced. .

In any other case, the court hearing the proceedings against the whistleblower shall assess the relevance of the charges brought by him.”

 

False testimony:

It involves a statement made in court:

Article 434-13 of the penal code:

Version in force since January 1, 2002 Modified by Order no. 2000-916 of September 19, 2000 – art. 3 (V) JORF September 22, 2000 in force on January 1, 2002

False testimony given under oath before any court or before a judicial police officer acting in execution of a letter rogatory is punishable by five years' imprisonment and a fine of 75,000 euros.

However, the false witness is exempt from penalty if he has spontaneously retracted his testimony before the decision putting an end to the procedure rendered by the investigating court or by the trial court.

 

The fake news:

These are false news, in French law they are sanctioned when they aim to distort electoral campaigns.

" Art. L. 163-2.-I (electoral code).-During the three months preceding the first day of the month of general elections and until the date of the ballot in which they are acquired, when allegations or imputations inaccurate or misleading of a fact likely to alter the sincerity of the upcoming ballot are disseminated in a deliberate, artificial or automated and massive manner through an online public communication service, the judge in summary proceedings may, at the request of the public prosecutor, of any candidate, of any political party or group or of any person having an interest in acting, and without prejudice to compensation for the damage suffered, prescribe to the natural or legal persons mentioned in 2 of I of article 6 of Law No. 2004-575 of June 21, 2004 on confidence in the digital economy or, failing that, to any person mentioned in 1 of the same I all proportionate and necessary measures to put an end to this dissemination.
“II.-The judge in chambers shall rule within forty-eight hours of the referral.
“In the event of an appeal, the court rules within forty-eight hours of the referral.
“III.-Actions based on this article are exclusively brought before a tribunal de grande instance and a court of appeal determined by decree. »

ARCOM, the telecom regulator, ensures that foreign states do not alter the sincerity of the ballot.

LAW n° 2018-1202 of December 22, 2018 relating to the fight against the manipulation of information thus modifies the electoral code, THE LAW OF SEPTEMBER 30, 1986 RELATING TO FREEDOM OF COMMUNICATION (Articles 5 to 10),

Platforms have obligations of transparency and cooperation, and must set up reporting procedures to combat fake news.

European regulations (DSA–DMA) reinforce the obligations of platforms in terms of transparency on the origin of advertisements, which in principle makes it possible to identify those for political purposes, and platforms can choose to hide certain content during an election period, or set up de facto cells checking to alert the reader.

Are you the victim of an insult, defamation, contempt, false testimony, and you want to know how you can defend yourself? Pierre de Roquefeuil, a lawyer specializing in communication law in Paris, supports you to advise you and to ensure that your interests are respected.

The lawyer specializing in communication law advises you and helps you identify the exact fault committed by the author of the comments online. Get in touch with Pierre de Roquefeuil, a lawyer specializing in communication law in Paris.

Right to be forgotten, to be delisted from search engines 

online hate

Responsibilities of internet and media actors

NFT Art: The lawyer specializing in digital and intellectual property in Paris supports you in your project

by | Jan 30, 2023

   NFTs: serious or not serious? The NFT specialist lawyer answers you and accompanies you in your NFT projects.

The NFT is neutral in itself, and effective if surrounded by the appropriate IT and legal environment.

This is what the Roquefeuil firm offers you for your NFT questions or your Web 3.0 project

A lawyer specializing in intellectual property and digital law assists you with your NFT, cryptos, blockchains issues

It is indeed on the basis of copyright and crypto legislation that your project can take shape.

For an introduction to NFTs, Web 3.0, cryptos:

web 3.0 and the metaverse 

NFT and copyright

If the contract associated with the NFT and carried by the platform is sufficient, the digital quality there, the robust authenticity verification, there is no reason why your NFT art should not be credible.

In the bill under discussion (Bill to promote digital art and protect new forms of artistic creation), the MP recalls this evidence: "As early as the 1930s, Walter Benjamin grasped the upheaval to which artistic creation copes with the rise of photography and cinema: the possibility of reproducing the same work ad infinitum, far from distorting the creation, modifies the relationship of the artist to the support of his work. »

“..now that each individual has personalized access to the internet, has social networks to share their interests and explores the world through a digital device, access to art is experiencing a new wave of democratization. »

“Digital art is not, however, limited to screens. On the contrary, many creations reminded us that art can re-enchant public space, by increasing buildings or endowing common places with new experiences. The Atelier des Lumières in Paris, the Carrière des Baux de Provence, the Bassin des Lumières in Bordeaux or even the Fête des Lumières in Lyon show an overview of the rich and diverse horizons that digital art reveals to us. »

“Digital art thus makes it possible to democratize access to culture for a new audience. »

 » Many innovative companies have been created in France which promote new generations of artists. »

Nevertheless, digital art seems insufficiently addressed by tax law and forms of public aid for artistic creation.

Article 150 VH bis of the General Tax Code only provides:

“I. – Subject to the provisions specific to professional profits, capital gains realized by natural persons domiciled for tax purposes in France within the meaning of Article 4 B, directly or through an intermediary, during a transfer for consideration of The digital assets mentioned in Article L. 54-10-1 of the Monetary and Financial Code or rights relating thereto are liable to income tax under the conditions provided for in this article. »

It is therefore planned that the NFTs be attached to the favorable patronage regime and to the tax deductions benefiting the acquisition and rental of works.

The proposal evokes an interesting definition of NFT Art, with reference to cryptocurrencies:

“ “II. – A non-fungible token is considered, under this article and to the exclusion of tokens considered as digital assets within the meaning of Article L. 54-10-1 of the Monetary and Financial Code, as any intangible property and not fungible representing, in digital form, one or more rights that can be issued, registered, stored or transferred by means of a shared electronic recording device making it possible to identify, directly or indirectly, the owner of the said property. » »

 

 

 

 

NFT project: anticipate risks and legal issues!

For now, the legal framework for these digital tokens is still unclear. However, we
We have examined the questions that the NFT project leader must address:

– NFT tax regime

As we have seen, the taxation of NFTs is still uncertain and its taxation varies according to its
qualification: digital or intangible asset. The legislator has taken up the subject. The NFT lawyer
accompanies you to anticipate changes in tax law.

– NFT and copyright, the lawyer specializing in intellectual property law accompanies you:

The author of the original work remains the owner of the copyright. So, to exploit
commercially the latter, verifications and contracts are to be expected.

On copyright contracts: 

https://roquefeuil.avocat.fr/cession-des-droits-dauteur-avocat-propriete-intellectuelle-paris/

Your NFT lawyer carries out a prior art search, makes an inventory of rights, drafts an assignment contract in order to avoid infringement disputes.

– Consumer protection regulations:

NFT issuers must respect the rules of consumer protection, the right of withdrawal, and consumer information.

‍– Money laundering 

As crypto-assets, NFTs can be used as a tool for money laundering and financing illegal activities. Hence the importance of finding out about the origin of the NFT, the reliability of its issuer or platform, etc. Compliance work is required before any transaction.

– NFT and metaverse

Brands are investing in the metaverse. Who has the right to do what in this universe? The nft lawyer secures your contract.

What is the service of the NFT lawyer?

The NFT lawyer is above all an intellectual property lawyer.

Classically, you can expect him to preserve and secure your financial, commercial and patrimonial interests in terms of intellectual property law.
He reviews or drafts your contracts, and assists you in your negotiations with artists, NFT creators, service providers, investors, traders, gallery owners and art dealers, video game studios, platform
NFT, individual buyers of NFT…

The firm Pierre de Roquefeuil, in Paris, specialized in intellectual property and digital law, therefore assists you on questions of project feasibility, drafting contracts (transfer, production), CGV, CGU, sponsorship, blockchain deposits, litigation fraud, competition, counterfeiting…

Your databases

Is the software licensee an infringer or simply a faulty co-contractor?

by | Nov 12, 2022

Oct 18, 2018 –

 

Can the licensee be qualified as an infringer? Evolution of the debate.

Failure by a software licensee to comply with the terms of a software license agreement (by expiration of a trial period, exceeding the number of authorized users or other unit of measure, such as processors that can be used to execute the instructions of the software, or by modifying the source code of the software when the license reserves this right to the initial holder) does it constitute:

– an infringement (within the meaning of directive 2004/48 of April 29, 2004) suffered by the copyright holder of the software reserved by article 4 of directive 2009/24/EC of April 23, 2009 concerning legal protection computer programs
– or can it obey a separate legal regime, such as the common law contractual liability regime?

If it is a counterfeit, the counterfeiter can be prosecuted according to the specific regime for counterfeiting, with in particular the possibility of criminal prosecution, seizure-counterfeiting;

If it is a simple breach of contract, the licensee is liable under the general regime of contractual civil fault.

The difference is considerable on the legal level, particularly with regard to the administration of evidence and the type of compensation that can be obtained in reparation.

 

Paris Court of Appeal, pole 5 – ch. 1, judgment of October 16, 2018

1 By a contract of August 25, 2010, modified by an amendment of April 1, 2012, the company IT Development granted the company Free Mobile, a telephone operator offering mobile plans on the French market, a license and a maintenance contract on a software package called ClickOnSite, centralized project management software intended to allow it to organize and monitor in real time the evolution of the deployment of all of its radiotelephony antennas by its teams and by its external technical service providers.

Arguing that modifications were made to the software in violation of the license agreement, and after having had an infringement seizure carried out on May 22, 2015 at the premises of the company Coraso, a subcontractor of the company Free Mobile, the company IT Development, by deed of June 18, 2015, summons the company Free Mobile for infringement of the ClickOnSite software and compensation for its damage.

In addition to the inadmissibility and ill-foundedness of these requests, the company Free Mobile brought a counterclaim in abusive proceedings.

2 IT Development appealed on February 3, 2017 against the contradictory judgment delivered on January 6, 2017 by the Paris tribunal de grande instance which:

  • Declared the company IT Development inadmissible in its claims based on tort liability,
  • Dismissed the company's claim for damages for abuse of process
    Free mobile,
  • Order IT Development to pay the costs and to pay Free Mobile the
    sum of 8000 euros on the basis of the provisions of article 700 of the code of
    Civil Procedure.

3 In its final conclusions of May 3, 2018, the company IT Development asks the court to:

  • On a preliminary basis, submit to the Court of Justice of the European Union (CJEU) a preliminary question in the following form:
    "The failure of a software licensee to comply with the terms of a software license agreement (by expiration of a trial period, exceeding the number of authorized users or other unit of measure, such as the processors that can be used to execute the instructions of the software, or by modifying the source code of the software when the license reserves this right to the initial holder) does it constitute:
    – an infringement (within the meaning of directive 2004/48 of April 29, 2004) suffered by the copyright holder of the software reserved by article 4 of directive 2009/24/EC of April 23, 2009 concerning legal protection computer programs
    – or can it obey a separate legal regime, such as the common law contractual liability regime? ".
  • Set aside the judgment under appeal, and:
    » Declare admissible the action for infringement brought by the company IT Development;
    » State that the allegedly infringing ClickOnSite software is identified and original;
    » Declare and judge that the modifications of the software by the company Free Mobile constitute acts of counterfeiting;
    Mainly, in respect of the infringement, order the company Free Mobile to pay the company IT Development the sum of €1,440,000 for compensation for the damage suffered by the company IT Development;
    In the alternative, on a contractual basis, order the company Free Mobile to pay the company IT Development the sum of €840,000 for compensation for the damage suffered by the company IT Development;
  • In all cases: Prohibit the Free Mobile and Coraso companies from using the ClickOnSite software and from extracting and reusing the data from the ClickOnSite software under a penalty of €500 per day of delay from the day after the fifteenth day of notification the decision to be made, it being up to Free Mobile to justify the cessation of use of the software by any means at its convenience (uninstallation or other);
    » Reserving competence for the liquidation of penalty payments;
    » Order Free Mobile to pay all the costs, including the costs of reports and the costs of seizure-infringement;
    » Order Free Mobile to pay IT Development the sum of €40,000 under Article 700 of the Code of Civil Procedure.

4 In its final conclusions of May 11, 2018, the company Free Mobile asks the court to:

  • Confirm in all its provisions the judgment entered into, except insofar as it dismissed the company Free Mobile's claim for damages for abuse of process, and except on the quantum of the sentence pronounced against the company IT Development on the basis of the provisions of article 700 of the code of civil procedure;
  • Reversing the judgment of these counts, and ruling again:
    » order IT Development to pay Free Mobile the sum of €50,000 (fifty thousand euros) in damages for abusive proceedings;
    » order the company IT Development to pay the company Free Mobile the sum of €50,000 (fifty thousand Euros) on the basis of Article 700 of the Code of Civil Procedure, for costs not included in the costs of the first instance;
  • Adding to the judgment:
    » Pronounce the nullity of the report of seizure-infringement drawn up on May 22, 2015
    by Maître Yves MAS, bailiff, at the registered office of CORASO;
    » Declare the nullity of the “Expert report” of May 30, 2015 and the “Freely established technical note” submitted to the proceedings by the company IT Development as exhibits n°12 and n°43, or at the very least declare them inadmissible as evidence and exclude them from the proceedings;
    » Declare the company IT Development inadmissible, and in any case ill-founded, in all of its claims against the company Free Mobile; dismiss it;
    » Order IT Development to pay Free Mobile the sum of €50,000 (fifty thousand Euros) on the basis of Article 700 of the Code of Civil Procedure, for costs not included in the costs of the proceedings call;
    » Order IT Development to pay all the costs, which may be recovered directly by SELAS Bardehle Pagenberg, Lawyers, in accordance with the provisions of Article 699 of the Code of Civil Procedure.

5 The closing order is dated May 15, 2018.

DISCUSSION

Pursuant to the provisions of Article 455 of the Code of Civil Procedure, reference is expressly made, for an exhaustive statement of the claims and means of the parties, to the written submissions that they submitted, as referred to above.

Admissibility and the question referred

6 In its summons and conclusions at first instance, the company IT Development maintained that the company Free Mobile had committed acts of infringement by modifying the ClickOnSite software, in particular by creating new forms. According to it, the defendant was not admissible to invoke the provisions of article L.122-6-1 of the intellectual property code authorizing it to modify the software for use in accordance with its intended purpose, therefore, d on the one hand, that these modifications would have been substantial, on the other hand, that the possibility of proceeding with them would have been excluded by the contract;

7 In order to declare it inadmissible in respect of these claims based on infringement, the court considered that the combination of articles 122-6 and 122-6-1 of the intellectual property code led to the recognition of two distinct liability regimes in the matter, the tort in the event of infringement of the rights of exploitation of the author of the software, as designated by law, the other contractual, in the event of infringement of a copyright reserved by contract; that in the present case, the company Free Mobile was clearly accused of breaches of its contractual obligations, relating to an action for contractual liability and not tortious acts of software infringement;

8 In case of appeal, the company IT Development requests on a preliminary basis the submission of a preliminary question to the Court of Justice of the European Union, then the reversal of the judgment, asking to declare admissible the action for infringement. For these purposes, it maintains, firstly, that the recognized right of the author of software to authorize or prohibit the modification of the source code of the software is a right of legal origin, and that the violation of this right by the licensee is not a simple breach of contract but a violation of the author's legal right, thus constituting an infringement; secondly, that if for all other intellectual property rights the action for infringement is expressly opened in the event of violation of a license contract, article L 335-3 paragraph 2 of the CPI which provides that is also an offense of counterfeiting the violation of one of the rights of the author of software defined in article L.122-6, is intended to apply both to cases of use without right (the "piracy ” in the strict sense), only to those of a use exceeding the license; thirdly, that the action for infringement is not an action of an exclusively tortious nature; that the distinction between contractual and tort liability is contrary to the objective of the European legislator to establish a single procedure following Directive 2004/48; that in reality, counterfeiting has a dual nature: criminal and contractual action, and it is blind, since the law of 2007, to the distinction between contractual and tortious; that fourthly, the directive on the fight against counterfeiting wanted to give counterfeiting the widest possible definition extending to any infringement of intellectual property rights.

9 Free Mobile, which considers that there is no need to ask any question for a preliminary ruling, requests confirmation of the judgment. It argues that the legal provisions establish two different liability regimes for two different categories of acts, on the one hand, acts infringing a right reserved by law, giving rise to a liability action for the benefit of the author of the software tort, the action for infringement, on the other hand, acts infringing a right reserved by contract, opening for the benefit of the author of the software an action in contractual liability against his co-contracting party; that in the present case, the incriminated acts, namely a violation of the contractual obligations of the licensee, do not open to the company Free Mobile an action for infringement; that the non-cumulation of contractual and tort liability is a cardinal principle of civil liability in French law and that it is in fact established that the creditor of a contractual obligation cannot prevail against the debtor of this obligation, even if - even there would be interest, rules of tort liability; that in reality, when the legislator intends to derogate from common law by allowing the injured party to take action in tort against a licensee who infringes one of the limits of his license when he could only do so in principle on the basis of contractual liability, it then expressly and very precisely provides for this derogation, thus in matters of patent licensing or in matters of trademark licensing; whereas, on the other hand, with regard to software licenses, the legislator has not provided for any derogation from the principle of common law according to which, in the presence of a license contract binding the parties, the regime of contractual liability prevails over that of tort liability; that no provision of Directive 2009/24/EC of April 23, 2009 on the legal protection of computer programs, nor any provision of Directive 2004/48/EC of April 29, 2004 on the enforcement of intellectual property rights, does not require Member States to make tortious liability prevail over contractual liability in the event that the legitimate user of software infringes the limits of the license from which he benefits; that the Court of Justice of the European Union has already itself established, in a judgment of April 18, 2013 (C-103/11, European Commission v. Systran) rendered in matters of software licensing, the principle of common law according to which contractual liability prevails over tort liability.

This being stated, the court

10               1 – The factual context

The court recalls that by a contract of August 25, 2010, modified by an amendment of April 1
2012, the company IT Development granted the company Free Mobile, operator of
telephony offering mobile plans on the French market. license and contract
maintenance on a software package called ClickOnSite, project management software
centralized system intended to enable it to organize and monitor in real time the evolution of the
deployment of all of its radiotelephony antennas by its teams and by its
external technical service providers.

The IT Development company accuses the Free Mobile company of having modified the ClickOnSite software, in particular by creating new forms.

In addition to the substantial nature of these modifications, it relies in particular on the stipulations of article 6 “scope of the license” to maintain that the company Free Mobile did not have the right to make such modifications:

In any event, the Customer expressly refrains (…) from:
– reproduce, directly or indirectly, the Software (…) with the exception of backup copies;
– decompile and/or carry out reverse engineering operations on the Software, except for legal exceptions;
– modify, correct, adapt, create secondary works and additions, directly or indirectly, in relation to the Software Package, it being understood that the Client will nevertheless have free read access to the database.
– (…)

If necessary, the Customer reserves the right to ask the Supplier, by simple mail, fax or email, for information necessary for the interoperability or compatibility of the Software Package with other software used by the Customer. In the absence of a satisfactory response as to the completeness and relevance of this information from the Supplier within a period of one month after receipt of the said request, the Customer will proceed on its own, in accordance with the provisions of article L 122 -6-1 of the Intellectual Property Code, to the operations of decompiling the source code of the Software Package for the sole purpose of ensuring the interoperability or compatibility of the Software Package with another software used by the Customer (…).

At first instance, the plaintiff based its claims exclusively on infringement. On appeal, it also bases them, in the alternative, on contractual liability.

In addition to the inadmissibility of the claims on the basis of counterfeiting, the company Free Mobile essentially argues, firstly, that the proof of the originality of the software is not reported, secondly, that the seizure operations- counterfeiting are void, as well as the report drawn up by an expert, thirdly, that the proof of an unauthorized modification of the software is not reported, lastly, that the modifications carried out concern only the database specific to the licensed operator and that the clause prohibiting modification of the software package, contrary to the public order provisions of article L.122-6-1 of the intellectual property code, must be deemed unwritten.

11               2 – Relevant texts

a – Community directives

Article 2 of Directive 48/2004/EC of April 29, 2004

1 – Without prejudice to the means provided for or which may be provided for in Community or national legislation, insofar as these means are more favorable to the holders of rights, the measures, procedures and remedies apply, in accordance with Article 3, to any infringement of intellectual property rights provided for by Community law and/or the national law of the Member State concerned.

Directive 2009/24/EC of April 23, 2009

Article 4 – Acts subject to restrictions

1. Subject to Articles 5 and 6, the Holder's exclusive rights within the meaning of Article 2 include the right to make or authorize:
(a) the permanent or temporary reproduction of a computer program, in whole or in part, by any means and in any form whatsoever (…)
b) the translation, adaptation, arrangement and any other transformation of a program
computer and the reproduction of the resulting program, without prejudice to the rights of the
person who transforms the computer program;
c) any form of distribution, including rental, to the public of the original or copies
of a computer program.

Article 5 – Exceptions to acts subject to restrictions

1. Except for specific contractual provisions, the acts referred to in Article 4(1)(a) and (b) are not subject to the holder's authorization when these acts are necessary to enable the lawful purchaser to use the computer program in a manner consistent with its intended purpose, including to correct errors.

b – Articles of the intellectual property code

Article L112-2

Are considered in particular as works of the mind within the meaning of this code: (…)
13° Software, including preparatory design material.

Article L122-6

Subject to the provisions of article L. 122-6-1, the right of exploitation belonging to the author of software includes the right to perform and authorize:

1° The permanent or temporary reproduction of software (…)
2° The translation, adaptation, arrangement or any other software modification and
the reproduction of the resulting software (…)
3° The placing on the market for consideration or free of charge, including rental, of the copy or copies of software by any process (…)

Article L122-6-1

I. The acts provided for in 1° and 2° of Article L. 122-6 are not subject to the authorization of the author when they are necessary to allow the use of the software, in accordance with its intended purpose, by the person having the right to use it, including to correct errors.

However, the author is entitled to reserve by contract the right to correct errors and to determine the specific terms and conditions to which the acts provided for in 1° and 2° of Article L. 122-6 will be subject, necessary to allow the use of the software, in accordance with its intended purpose, by the person having the right to use it.

Article L335-3

Violation of one of the copyrights of software defined in article L. 122-6 is also an offense of counterfeiting.

3 – Patterns

12 Since the 19th century, French civil liability law has been based on the cardinal principle of non-cumulation of tort and contractual liability, which implies:

– that a person cannot see his contractual liability and his tort liability engaged by another person for the same facts,
– that tort liability is excluded in favor of contractual liability when, on the one hand, the parties are bound by a valid contract and that, on the other hand, the damage suffered by one of the parties results from the non-performance or poor performance of one of the obligations of the contract.

Moreover, French law traditionally considers that counterfeiting, which is originally a criminal offence, arises from tort liability and not from non-performance of a contract.

13 The court deduced from this in this case, when the parties are bound by the contract of August 25, 2010 and it is alleged that the damage results from the non-performance of the clauses of this contract and particularly of its article 6, that tort liability must be set aside in favor of contractual liability, and consequently that the action for infringement, assimilated to the tort action, must be declared inadmissible.

The respondent company, which supports this analysis, rightly cites decisions of French courts going in this direction, including a judgment of this chamber of May 10, 2016.

14 However, it is not irrelevant that the appellant company maintains that infringement is not in essence a delictual action but could also result from the non-performance of a contract.

It is indeed true that counterfeiting is defined in its broadest sense as an infringement of an intellectual property right and, in the particular case of article L.335-3, as the violation of one of the rights the author of software [defined in article L.122-6].

Neither of these texts nor any other French text relating to counterfeiting expressly provides that the latter only applies when the parties are not bound by a contract.

Even if they can be presented as so many exceptions to the principle of non-cumulation, the texts below are also examples of what action for infringement can be brought in patent and trademark matters against the licensee who violates the limits of his contract:

Article L.613-8, paragraph 3 of the Intellectual Property Code

The rights conferred by the patent application or by the patent may be invoked against a licensee who infringes one of the limits of his licence.

Article L.714-1 of the Intellectual Property Code

The rights conferred by the application for registration of a mark or by the mark may be invoked against a licensee who infringes one of the limits of his license with regard to its duration, the form covered by the registration under which the mark may be used, the nature of the goods or services for which the license is granted, the territory in which the mark may be affixed or the quality of the goods manufactured or the services provided by the licensee.

In the case in point, Articles L 122-6 and L 122-6-1 of the Intellectual Property Code, if they provide in particular that the specific terms of a software modification can be determined by contract, do not do not provide that in these cases an action for infringement would be excluded. The same applies to Articles 4 and 5 of Directive 2009/24/EC of which they are the transposition.

Finally, it is true that Article 2 “scope” of Directive 48/2004/EC of April 29, 2004 on the enforcement of intellectual property rights generally provides that the measures, procedures and remedies are apply (…) to any infringement of intellectual property rights, without distinguishing between whether or not this infringement results from the non-performance of a contract.

The court considers under these conditions that a preliminary question must be submitted in the terms proposed to the Court of Justice of the European Union.

That there will be a stay of proceedings until the court of justice has answered it;


DECISION

15 The court, by contradictory judgment before saying right,

Refers to the Court of Justice of the European Communities for the purpose of answering the following preliminary question:

Failure by a software licensee to comply with the terms of a software license agreement (by expiration of a trial period, exceeding the number of authorized users or other unit of measure, such as processors that can be used to execute the instructions of the software, or by modifying the source code of the software when the license reserves this right to the initial holder) does it constitute:
– an infringement (within the meaning of directive 2004/48 of April 29, 2004) suffered by the copyright holder of the software reserved by article 4 of the directive 2009/24/EC of April 23, 2009 on the legal protection of computer programs
– or can it obey a separate legal regime, such as the common law contractual liability regime?

Stay to rule on the appeal of the company IT Development until the decision of the Court of Justice,

Holds that a copy of the judgment and a copy of the case file will be sent to the Court of Justice of the European Communities by registered post.

The originality of the software before the pretrial judge

Get support for your IT contracts

 

 

Paris Court of Appeal, Chamber 5, Pole 2, March 19, 2021, RG n°19/17493 confirming TGI Paris June 21, 2019 n°11/07081.

In this judgment, it is the contractual breach which is retained following a non-respect of the terms of the intellectual property license agreement (software license agreement).

This solution is nevertheless called into question by the Court of Cassation, which admits the action for infringement.

Court of Cassation, 1st ch. civil, judgment of October 5, 2022

Preliminary question: is the licensee of software an infringer or simply a faulty co-contractor?

Assignment of copyright

Reminder of the principle

The rules of intellectual property sanction criminally and civilly infringements of copyright, trademark or patent, copyright attached to software, that is to say the offense of counterfeiting.

 

Playdoyer for an exception

However, when a contract is at stake, involving a discussion and a partnership between two co-contractors, a form of confidentiality, it is surprising to invoke the wrath attached to the repression of the offense (criminal and civil) of counterfeiting to sanction the unscrupulous contractor.

The very notion of contract seems antithetical to the notion of offence, which presupposes an attack on public confidence, a public scandal. One is tempted to say here that the stop comes down to fundamentals.

However, it does not expand on the reasons for choosing the contractual liability regime, simply stating that:

 "when the event giving rise to an infringement of an intellectual property right results from a contractual breach, the right holder having consented by contract to its use subject to certain reservations, then only an action for contractual liability is admissible by application of the principle non-accumulation of responsibilities. »

The debate before the Court of Justice of the European Union

 The judgment reports above all and also the debate that there was before the Court of Justice of the European Union on the subject (judgment of the Court of Justice of the European Union (CJEU) delivered on December 18, 2019, case C-666-18)(judgment of December 18, 2019, IT Development v. Free mobile), on the basis of directives 2004/48 relating to the respect of intellectual property rights and 2009/24 on the legal protection of computer programs.

According to the CJEU:

[…] if Directive 2004/48 aims to establish the measures, procedures and remedies vis-à-vis the holders of intellectual property rights, which includes the copyright of computer programs provided for by Directive 2009/24 , this first directive does not lay down the exact terms and conditions for the application of these guarantees and does not prescribe the application of a particular liability regime in the event of infringement of these rights.

44 – It follows that the national legislature remains free to set the concrete methods of protection of the said rights and to define, in particular, the nature, contractual or tortious, of the action available to the holder of these rights, in the event of violation of its intellectual property rights, against a computer program licensee.

 

However, the doctrine remains divided on the subject, as well as recent case law (TJ Paris July 6, 2021, No. 18/01602), but tends to admit the action for infringement (see the aforementioned judgment at the beginning of article Court of Cassation, (1st ch. civ), October 5, 2022, Sté Entr'ouvert and Sté Orange)

NFTs and copyright

The originality of the software before the pretrial judge

 
 

 

Updated Nov 12, 2022

The Court of Cassation admits the action for infringement in the event of non-compliance with the license agreement.

In the Court of Cassation judgment, (1st ch. civ), October 5, 2022, Sté Entr'ouvert and Sté Orange, the Court of Cassation recognizes that the infringement of intellectual property rights can be sanctioned by counterfeiting regardless of the regime national responsibility, contractual or not.

Texts quoted:

Article L. 335-3, paragraph 2, of the Intellectual Property Code,

Articles 7 and 13 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights

Article 1 of Directive 2009/24/EC of the European Parliament and of the Council of April 23, 2009 on the legal protection of computer programs.

 

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