Update of May 31, 2023: The global transfer of future works
What is copyright?
See as well : Assignment of copyright
Copyright applies to any work, so it is extremely broad. Copyright may relate to the work of a writer through a book, the work of a music group or a musician through a musical composition, the work of a photographer through a photograph, etc. work must be able to present an original character and thus express the personality of its author.
The Intellectual Property Code (CPI) defines copyright, in the context of literary and artistic property. The copyright on a work confers on its author moral and patrimonial rights. The Intellectual Property Code (IPC) therefore provides in its articles L. 121-1 and L. 121-2, the right of its holder to control the disclosure of the work, a right to paternity of the work, as well as a right to respect for the work and the right of withdrawal.
Governed by the law of March 11, 1957, copyright is applied automatically from the moment the work has been produced and without any particular formality. On the other hand, the author must be able to provide proof of the originality of his work but also of the fact that he is the owner of his work. Proof can be provided by any means, it must however be dated.
The existence of a deposit or a recording of the work makes it possible, in particular in the context of litigation, to facilitate proof of the paternity and the date of creation of the work. Thus, the author can identify himself as the creator of a work with:
– A bailiff or a notary,
– From the National Institute of Intellectual Property (INPI),
– A company collecting and distributing royalties.
See also: on copyright:
https://roquefeuil.avocat.fr/cession-des-droits-dauteur-avocat-propriete-intellectuelle-paris/
Copyright: remuneration
The remuneration in copyright is paid in return for the exploitation of the economic rights of the latter on the immaterial property of his works. This concerns the creation of a work, not the coordination of it.
Copyrights will, for example, remunerate the marketing of an application, the design of web designs, or any other artistic work.
Copyright offers a rather advantageous form of remuneration for its beneficiaries. Indeed, copyright is not affected by social security contributions.
Remuneration for work and payment of copyright, the stakes are important for the tax services. Indeed, the latter are responsible for monitoring compliance with the legislation in force. In the event that the tax services become aware of an abuse or non-compliance with the rules applicable in this area, they may be led to reclassify the royalties as work income. Consequently, the income would be taxable in the same way as a salary.
For income to be considered as royalties, it is necessary that these constitute only a simple additional income.
The Labor Code provides for the accumulation of remuneration for salaried activity and copyright remuneration for the exploitation of a work.
Indeed, the payment of a counterpart of copyright is not subject to the payment of social security contributions unlike the payment of remuneration for work.
The Court of Cassation also specified in a decision of December 20, 2019 that "in the context of such a dispute, the employer must justify the fact that the sum which he qualifies as copyright is not salary. In this case, a program production company paid royalties to one of its employees who participated in its conceptualization. Thus, the Court considered that “the employer failed to demonstrate that the concept of the program constituted an original work eligible for copyright protection. Therefore, the remuneration paid to his employee could not be qualified as copyright but corresponded to a salary subject to the payment of social security contributions”.
In conclusion, an employee can combine remuneration due to a salary and remuneration in the form of royalties. However, the two remunerations must be distinguished. An author's note must be able to formalize the remuneration of copyright.
An employment contract signed between the employer and the employee makes it possible to formalize the two different remunerations, thanks to a copyright transfer clause. This clause must be precise and fair. Indeed, the clause must clearly mention remuneration in exchange for copyright. This clause is reassuring for both the employer and the employee. In the event that the employer exploits the works that have not been transferred, the author may sue his employer for an infringement action.
Collecting royalties requires drafting agreements and determining a percentage. In addition, precise accounting monitoring must be put in place.
Remuneration under the employment contract and remuneration under copyright
What comes under the employment contract, the relationship of subordination, is the remuneration for the number of hours worked. Copyright does not remunerate these hours, but rewards the success of the work, as evidenced by its marketing or other criteria.
The author is the creator and therefore the first owner of the rights. The rule is laid down by the legislator: "the existence or the conclusion of a work or service contract by the author of a work of the mind does not entail a derogation from the enjoyment of the recognized right by the first paragraph, subject to the exceptions provided for in this code” (Int. Prop. C., art. L. 111-1, al. 3).
The employer must in principle conclude a copyright assignment contract to acquire and exploit these rights, unless there is a legal exception.
Indeed, the law provides for cases of automatic transfer or presumptions of transfer.
Article L. 113-5 of the Intellectual Property Code also provides for ownership of copyright ab-initio for the benefit of the instigator of the work ("The collective work is, unless proven otherwise, the property of the natural or legal person under whose name it is disclosed") (Judgment Aero Cass. civ. 1, March 24, 1993, No. 91-16.543) (CA Paris, Pôle 5, 1st ch., January 15, 2014, No. 11/21191).
The copyright assignment contract
An employer who recruits an employee to create an original work may be unaware that he does not own the copyright in the work. It is incorrect to think that when the mission of the employment contract is creation, assignment is implicit, as in copyright.
When an employment contract is concluded, a copyright assignment clause must be provided, according to which the author employee agrees to assign, as his work is developed, the rights to the creations against remuneration. This type of clause secures the relationship between the two parties. Failure to comply with the clause may have an impact on the employment relationship. It does not organize the global transfer of future works, but constitutes a commitment to make, to grant a transfer of copyright once the work has been completed. This clause may be the subject of collective agreements.
The employer must therefore regularly ask his employee to have him sign agreements for the transfer of rights.
The global transfer of future works
Copyright makes it possible to reward the success of the work, its remuneration is linked to the success of the work, and not to the duration or the quantity of the work provided.
The employment contract provides for remuneration for the duration of the work provided.
The copyright assignment or license contract provides for the remuneration of the copyright (or royalty), and allows the exploitation of the work.
Can the employment contract provide for a global transfer clause for future works? This would make it possible to avoid having to conclude a copyright assignment contract for works not yet produced by the employee, in addition to the employment contract.
The principle is the prohibition of the global transfer of future works.
But, and this is the lesson of the judgment that follows, the employment contract can provide for a non-global transfer of non-future works!
The assignment of rights clause appearing in the employment contract is valid, when it concerns determinable and individualizable works, those carried out by the employee within the framework of her employment contract, as they are carried out. Thus, it does not incur the grievance of global transfer of future works pursuant to Article L. 131-1 of the Intellectual Property Code, since it does not globally target the works subject to the transfer and that it relates to works carried out, the transfer operating only as the realization progresses.
Court of Appeal of Paris, pole 5, 1D c., 25 January 2023, 19/15256
Mme [A] [H] vs. OLT SAS
(Confirmation TGI Paris, 3e ch., 3e sect., July 5 2019, 17/09426)
French 
English