Industrial Property Law

While the Intellectual Property Code grants rights to the creator of the design or his/her successor in title (Art. L. 511-9 IP Code), it is silent on the fate of designs created by employees. Only Regulation No 6/2002 of 12 December 2001 on Community designs includes provisions governing the fate of employee creations. The text stipulates that where a design is implemented by an employee in the p …

Employee

While the Intellectual Property Code grants rights to the creator of the design or his/her successor in title (Art. L. 511-9 IP Code), it is silent on the fate of designs created by employees. Only Regulation No 6/2002 of 12 December 2001 on Community designs includes provisions governing the fate of employee creations. The text stipulates that where a design is implemented by an employee in the performance of his or her duties or on the instructions of his or her employer, the right to the design belongs to the employer, unless otherwise agreed or specified in the applicable national legislation (Art. 14 (3)). According to the Paris Court of Appeal, Article L. 111-1, paragraph 3, of the Intellectual Property Code, according to which the existence or conclusion of an employment contract does not entail the transfer of copyright to the employer, does not constitute such a provision .

The majority of legal commentators advocate applying the rules of copyright law to national designs, under which goods created under an employment contract belong to the salaried designer. The existence of an employment agreement or commission contract does not entail any derogation from copyright, subject to the exceptions set out in the Intellectual Property Code (Art. L. 111-1 IP Code). Consequently, an employer cannot register an employee's creation unless the rights to it are transferred to the employer. This transfer requires the establishment of an assignment of rights , the terms of which are the subject of a dispute between trial courts and the Court of Cassation. While some courts of appeal accept the transfer of rights to the employer in the absence of a formal assignment , the Court of Cassation considers, that on the contrary, to be valid, it must meet the conditions laid down for the assignment of copyright by Articles L. 131-1 et seq. of the French Intellectual Property Code , which prohibit the blanket transfer of future works (Art. L. 131-1 IP Code), and require a written document specifically identifying each of the rights transferred, the field of exploitation, duration, intended use and geographical scope (Art. L. 131-2 and L. 131-3 IP Code), as well as proportional remuneration (Art. L. 131-4 IP Code).

In the absence of a transfer of rights, the system governing collective works allows the employer to be vested with copyright over the design by virtue of Article L. 113-5 of the Intellectual Property Code. To benefit from this system, the employer must demonstrate, in accordance with Article L. 113-1, paragraph 3, of the same code, that he is the originator of the work, and that the contribution of individuals to its creation forms part of a whole, and does not enable a separate right to be attributed to each of them .

CA Paris, 2 October 2018, LawLex201800001500JBJ.

Cass. com. 11 February 1992, LawLex202300008541JBJ.

CA Paris, 17 October 2008, LawLex202200001174JBJ; 12 January 1981, Roset v. Steiner, PIBD 1981, III. Steiner, PIBD 1981, III, 93.

Cass. 1re civ, 16 December 1992, LawLex20220000000314JBJ; Cass. com, 5 November 2002, LawLex202300001514JBJ, which specifies that this formal assignment requirement, which is intended to protect the originator himself and not his successors in title, is not applicable in relations between a transferee and a sub-assignee; Cass. 1re civ, 6 February 2013, LawLex202200006588JBJ.

CA Montpellier, 8 March 1994, LawLex200200004921JBJ, relating to the creation of a lighting fixture by two employees of an undertaking; CA Paris, 14 September 2012, LawLex202100004690JBJ, relating to the contribution of a designer to the creation of a piece of jewelry.

Industrial Property Law

452. Employee

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452. Employee

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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