Jurisdiction over the web

Ex ratione materiae

For purposes of attributing jurisdiction over communications in France, the law makes a distinction between "telecommunications" and "audiovisual communications". The former, which covers essentially one-to-one communications, are subject to the Autorité de Régulation des Télécommunications (ART), and the latter, covering rather point-to-multi-point communications, is subject to the authority of the Conseil Supérieur de l'Audiovisuel (CSA). Where the internet fits in this jurisdictional structure remains unsettled. Still it is prudent to advise the CSA in writing of the opening of a web site in France.

Also as persons operating web sites from French territory might be considered as carrying on a publishing activity, it is advisable to make a declaration of the commencement of the activity to the Procureur of the jurisdiction in which the site is located.

Ex ratione loci

The French courts claim jurisdiction over all sites which can be visualized on computer screens in France in that such conduct is considered to have had effects in France, namely through the visualization on French computer screens of the site, even if it located on a server outside France. The French courts will apply French law to foreign sites on the basis that the activity occurs in France (since the screens are visible in France). Also the French courts will declare themselves competent to render judgments against foreign site operators which could be executed upon assets of the site in France or in other countries accepting the enforce the french judgment.

In a word, the French courts apply the universal approach to regulation of the internet. For a detailed and critical analysis of these rules the reader is referred to www.lapres.net/html/yahweb.html.

 On the other hand, in what may seem a strange paradox, when it comes to intellectual property rights in communications by satellite, the French texts claim jurisdiction only over signals from satellites which reaching French territory if they were either emitted from French territory to the satellite or otherwise, if the signals were emitted at the behest, for the account of or under the control of an audiovisual company with its principal establishment in France.
 
 

Intellectual property rights in the context of the internet

France is a member of almost all the international conventions relating to intellectual property. With respect to most countries not tied to France by convention, France applies the principle of reciprocity to the recognition of intellectual property rights of citizens of such countries Attached is a list of such conventions with links to their URLs. French intellectual property legislation is concentrated in the Code de la Propriété Intellectuelle.

Patents

Institut National de la Propriété Industrielle (INPI) is responsible for the registration of patents in France.

Foreigners who do not have the benefit of conventions between their countries of origin and France nevertheless can claim patents in France where their own country grants French citizens reciprocal rights.

Patents have a term of 20 years from the date of filing whereas certificates of utility have terms of 6 years from filing.

Patents are issued to inventors. Where more than one person claims to be the inventor, the first to have filed an application for patent is given priority.

The rights in inventions by employee in relation with their employment are complex. If the invention derives from work for which the is inventor is specifically employed (a researcher in a laboratory), the rights accrue to the employer but the employee is entitled to a financial reward as determined by the applicable collective agreement or individual employment contract. If the parties were to be unable to agree, they could refer the matter to the Conciliation Commission attached to the local Tribunal de Grande Instance.

Otherwise inventions belong to the employee-inventor, except that where the invention arises in connection with the performance of the employee's contract (though he/she is not necessarily charged with research or other inventive activities), the employer shall be entitled, subject to the conditions and the time limits laid down by decree in Conseil d'Etat, to have assigned to him the ownership or enjoyment of all or some of the rights in the patent protecting his employee's invention.

Agreements between the employer and employee about such matters must be in writing.

To earn a patent, an invention must be new and be capable of industrial application.

The following may not be patented :

- discoveries such as scientific theories and mathematical methods,

- creations, drawings, principles and methods in the exercise of intellectual activities in games or economic activities as well as computer programs ;

- presentations of information

except that these exclusions apply only to the extent that the patent application concerns one these elements as such.

An invention is considered new if it is not in the state of the art. which includes anything made available to the public before the date of filing of the application whether oral or written

By inventiveness is meant that a person trained in the relevant art it would not be obvious based on the state of the art.

Producers of countries goods are liable for civil damages even in the absence of knowledge of the countries.

But traders in such goods are liable only if they had knowledge of the counterfeiting.

There are also criminal sanctions for counterfeiting patents in France which can reach up to 150.000 euros in fines and two years imprisonment.
 

Trade secrets

Trade secrets are protected against disclosure by managers or employees and violators can be fined up to 30,0000 Euros and imprisoned for up to 2 years.
 

Designs

What can be protected as designs are the appearances of products characterized by such elements as its lines, its contours, its colors, its form, its texture or its materials.

Only designs which are new and which have specific properties may be protected. A design is new if it has no identical design has been disclosed previously. A design is considered identical when its characteristics differ only in significant details.

A design is said to have specific properties when the overall visual impression given the initiated observer from that produced by any other design with all due account being taken of the freedom granted the artist in the execution of the design.
.
Cannnot be protected as designs those appearances which are imposed by the technical functioning of the product.

Designs may be published at the INPI.

Outside of conventional regimes, France will grant foreigners rights based on reciprocity with their countries of origin.

Design registrations are valid for 5 years and may be renewed fro a maximum of 25 years.
 

Trademarks

Trademarks are signs which can be represented graphically which are used to distinguish products nor services of any individual or legal person. They can be words, symbols, forms, assemblages of same. They can also be sounds including musical phrases.

To be protected trademarks must be distinctive. Are not considered to be distinctive:

- Marks which in ordinary or professional language are exclusively used as the necessary, generic or usual designation of the product or service,

- Signs or denominations which may be used to designate a characteristic of the product or service, including its type, quality, quantity, use, value, geographical origin, period of the product or service,

- Signs consisting exclusively of the form imposed by the nature or the function of the product or conferring upon it its substantial value.

Distinctiveness may except in the last case be acquired by usage.

No protection is afforded to trademarks:

- in violation of article 6ter of the Berne Convention or paragraph 2 of article 23 of annex I C to the WTO Agreement.

- contrary to  public policy ("ordre public") or good morals ("bonnes moeurs") or the use of which is prohibited.

- which deceive the public in particular with respect to the nature, quality or the geographical origin of the product or service,

- which harm prior registered or generally known ("notoirement connu") within the meaning of article 6bis of the Paris Convention..

- which correspond to the corporate name or trade name known all over French territory where there is a risk of confusion in the mind of the public,

Registration of a trademark confers ownership thereof to the registrant.

The owner can exclude others from using the trademark in connection with products or services similar to those in the registration where there might arise confusion in the minds of the public.

Only the owner of a trademark may reproduce it or cause its removal from any product.

The owner's rights to limit the circulation of products and services bearing its trademark are exhausted with its first lawful introduction into trade within the European Community or European Economic Area, unless for legitimate purposes such as when the products or services undergo subsequent alterations.

Registration of a trademark will not prevent its use by any individual with the same family name acting in good faith.

Counterfeiting may give rise to civil actions brought before the local Tribunal de Grande Instance though disputes may also be settled by arbitration in compliance with articles 2059 et 2060 of the Civil Code.
Injunctions may be obtained in summary proceedings to cause manifestly illicit behavior to be stopped.

The French Customs authorities may seize counterfeit goods.

The police may seize goods bearing counterfeit trademarks.

Violations are punished by up to two years imprisonment and fines of up to 150,000 Euros. Guilty business may be forced to close temporarily or definitively. Repeat offenders are punished twice as heavily. Violators are often obliged to publish advertisements of their convictions.
 
 

Domain names in .fr

The organization responsible for the management of the top-level domain name in .fr is AFNIC.

The attribution of a domain name is subject to administrative and technical rules as well as  on conventions intended to create a logical organization of the.fr domain.

Domain names must be comprised exclusively of the characters: "a" to "z", "0" to "9" and the symbol "-". The last symbol may be used as a separator but may not be used at the beginning or at the end of the domain name. All other characters except "." are prohibited in domain names. The character "." plays a special role: it separates different levels of sub-domains in the hierarchy of a given domain.

No distinction is made between caps and regular characters.

A domain name may not be comprised exclusively of numbers. The maximum length is 63 characters per sub-domain (that is a total of 255 characters).

Some domain name rules specific to the .fr domain. Names using only 1 character are prohibited. Directly under the .fr domain may not be comprised of only 2 characters (at least 1 number + 1 letter are required); in other sub-domains, 2 letters are possible (including in the .com.fr extension).

Given the evolving state of the technical and regulatory environment all "fundamental" names may be reclaimed, retroactively by right of preemption or by repossession by AFNIC, without compensation, subject to giving sufficient notice to allow migration.

Only sub-domains belonging to the top-level domain name holder may be included in the domain name. Domain names in .fr are attributed to organizations or individuals officially declared in France. To this end, a business registration certificate (Kbis) or a national statistical registration (SIRET) are required from enterprise applicants. Holders of trademarks registered in France may register the equivalent domain name. For all domain names in .fr, the name sought must be included in the documents as required below.

The domain name is a right of usage which is attributed to the applicant organization and not to the internet service provider; therefore, domain names are not assignable from one company to another. It is imperative for company "A" to apply to abandon its domain so that company "B" may request a fresh creation of the domain name - which must comply with the rules
governing domain names for the .fr domain.

The applicant must verify that the requested name will not violate prior rights (refer to the Code of Intellectual property ad the trademark law). AFNIC carries out no searches of anteriority.

The applicant for a domain name must learn and respect the applicable laws.

Some names may comply with the above general requirements and still be prohibited (the word France, the names of regulated professions, "fundamental" terms such as those relating to public order and/or public morals, those closely related to the functioning of the internet, and the names of international organizations as well as of countries signatory of the Paris Convention).

It is to be noted that abbreviations or shortcuts of terms may be used.

An entity may obtain 5 domain names provided the names appear on the entity's registration certificate (Kbis in the case of companies and merchants or SIRET for all economic agents)
 
 

Copyrights

Article L111 of the Code de la Propriété intellectuelle and following cover copyrights.

Authorship rights in works of the mind arise under French law through the creation of the work, regardless of type, form merit or intended use, though the first to publish a work is presumed to be its creator. These rights are defined as rights of intangible property ("propriété incorporelle"). They are exclusive and may be invoked against all others persons. Such rights are both personal (moral rights) and economic.

All manner of media may incorporate copyrights, in particular: books, conferences, music, dramaturgy, audiovisual works, and other works consisting in animated sequences of images, whether or not accompanied by sound, drawings, graphic and typographical works, photography and works achieved by analogous techniques, software including preparatory works.

Authors of translations have authorship rights in their work without prejudice to the rights of the author of the original work.

Where several individuals collaborate in the realization of a work, it will be considered to be a collaborative effort, with the consequence that the creators will hold the authorship rights in common and they must then agree on the use and disposition of their rights. In the event of irreconcilable differences, the parties must take their complaint to the civil courts. In these situations each of the authors may use his own work independently of the others provided he does so without prejudice to the common work.

Collective works are those which are created at the initiative of an individuals or legal persons who manage and publish it. These works result from individual participations in an overall product without any contribution enjoying individual rights in the overall product. Collective works belong, in the absence of proof to the contrary, to the individuals or legal persons who publish them.

As regards audiovisual works, their authors are those who are responsible for its intellectual creation. In the absence of proof to the contrary, the following persons are considered to be co-authors of a collective work: the authors of scenarios, of adaptations of works, of dialogues, of the music and directors. Radio programs are covered b y similar rules.

The economic rights in software produced by individuals in the context of their employment belong, in the absence of proof to the contrary, to the employer.

The author's moral rights are the right to have his name, his capacity and his work respected. This right is personal, perpetual, inalienable and not subject to prescription. They may be transferred upon death.

The author also has the right to disclose his/her work.

Authors have a right of withdrawal of their grant of any right of exploitation with respect to their works provided they pay appropriate indemnification.

Audiovisual works are considered completed when the final version has been approved by the director, or where applicable the co-authors, and the producer. Any modifications ion this version requires the approval of said parties. When audiovisual works are transferred onto another medium, the director must be consulted.

 Authors of software do not enjoy the right to object to modifications in their product unless they entail harm for their honor or reputation nor do they enjoy the right of withdrawal.

  The economic rights of authors are those to represent the works and the right to reproduce them. Representation consists in communicating the work to the public by whatsoever means including: recitation, telecasting, including all forms of telecommunications of sounds, images, documents, data ad messages and satellite transmission, and in such cases, the right of representation is governed by French law whenever the program is emitted from French territory toward the satellite.

  Under article L122-3 of the Code de la Propriété Intellectuelle reproduction consists in the "material fixation of the work by any method which makes it possible to communicate indirectly with the public" ("la fixation matérielle de l'oeuvre par tous procédés qui permettent de la communiquer au public d'une manière indirecte"), such as without limitation printing, drawing, engraving, photography, graphic and plastic arts, mechanical, cinematographic or magnetic recording.

 Reproductions without the authorization of the author are prohibited, as are translations, adaptations or transformations and reproduction by any art or process whatsoever.

 By way of exception, private representations of published works are not protected nor are parodies, or copies for personal use unless the copy is of an art object where the copy servers much the same purpose as the original.

  Additionally, provided the author and the source are cited, reproduction of short citations used for purposes of criticism, discussion, teaching, science or news are permissible without the author's consent. It will be noted that French law does not incorporate an equivalent of the American doctrine of "fair use". Furthermore, the whereas one might have expected the conditions to be alternative, in fact they are additive.

  Authors of software are protected against reproductions "whether permanent or temporary whether in whole or in part and in whatsoever form". The law specifically states that in so far as the loading, posting, execution, transmission or storage of software requires any reproduction, such acts may only be carried out with the consent of the author, unless such acts are necessary to make use of it or to correct errors.

 The first sale of any software exhausts the economic rights of authors against all subsequent purchasers of such software, though rentals of the software are prohibited except that authors of works of the graphic and plastic arts are subject to an inalienable right to participate in the subsequent sales of their works at auction or through merchants (3%).

 Holders of the right to use software do not need the consent of their authors to "observe, study or test its operation to determine the ideas and principles underlying any element of the software when it is loaded, posted, operated, transmitted or stored". Software code may be reproduced when this is "indispensable" to obtain the information necessary to achieve inter-operablilty with other software.

 The rights of representation and reproduction may be transferred with or without consideration and the grant of the one does not imply grant of the other.

 The publication of a work entails the grant of the right of reproduction by "reprography" to any society approved for such purpose by the Ministry of Culture. By "reprography" is meant reproduction on paper or similar media using photography or techniques for direct reading.

  The term of authorship rights corresponds to the life of the author plus 70 years provided that the term of foreign copyrights cannot exceed that applicable in the country of origin..

 Authors have a right to cause their remuneration to be revised if it was based on a fixed payment and the underpayment is at least 7/12s of an amount determined in the light of all the circumstances.

 Software may be "mortgaged" ("nantissement") provided the agreement is registered at the INPI.

  Performing artists enjoy "neighboring rights" ("droits voisins"). A performing artists is anyone who represents, sings, recites, plays pr performs in any manner a literary or artistic work, provided that are excluded so-called "artistes de complement".

Performing artists enjoy the right to have their name, capacity and his/her rendition of the work respected. This right is inalienable and is not subject to prescription and it is transferable by succession.

The term of the economic rights of performing artists is 50 years from January 1 of the year following the performance or the first fixation of the sequence for audiovisual products..

The works of performing artists may not be reproduced or communicated to the public without the authorization of the artists provided that written agreements between performing artists and producers of audiovisual products are deemed to include such authorization..

Producers of phonograms also have rights in works the first fixation occurs at their initiative and subject to their responsibility. The authorization of the producer is required prior to any reproduction, sale to the public, exchange or rental or communication to the public of the phonogram.

The following are subject to the prior authorization of the performers and producers:

- Direct communication of a work in a public place outside of the context of a show

- Broadcasting thereof ase well as its simultaneous distribution by cable.

Such events give rise to a right of remuneration for the performers and producers of the works.

 The schedules applicable to the calculation of such remuneration are based on agreements reached for each branch of activity by organizations representing the performing artists and producers of phonograms.

Producers of videograms also have rights in works the first fixation occurs at their initiative and subject to their responsibility. The authorization of the producer is required prior to any reproduction, sale to the public, exchange or rental or communication to the public of the videogram.

 In the case of audiovisual productions, their reproduction, their sale to the public, their rental or exchange, their teledistribution, and their communication in a public place are subject to the authorization of their producers.

 Counterfeiting products may be seized by the police pursuant to court order.

      Counterfeiting of the works of performing artists and producers of phonograms is a criminal offence ("délit") in France. Convicted persons may be fined up to 150,000 Euros and may be imprisoned for up to two years.

  All "reproductions, representations and distributions by whatsoever means, of a work of the mind in violation of intellectual property rights" is considered to be counterfeiting.

Counterfeiting may give rise to civil actions brought before the local Tribunal de Grande Instance.

The French Customs authorities may seize counterfeit goods.

The police may seize goods bearing counterfeit trademarks.

Violations may be punished by up to two years imprisonment and fines of up to 150,000 Euros. Guilty business may be forced to close temporarily or definitively. Repeat offenders are punished twice as heavily. Violators are often obliged to publish advertisements of their convictions.
 

Data bases

Just as authors of translations, adaptations or arrangements of works of the spirit enjoy protection without prejudice to the rights of authors of the original works, so do authors of anthologies, and data bases enjoy rights over their intellectual creations with respect to the choice of materials or their presentation.

Data bases consist in collections of works, data or other independent elements arrayed in a systematic or methodical manner, and which are individual accessible by electronic or other means.

Producers of data bases are those who take the initiative for their production and assumes the risk for the investment involved. The obtain rights enjoying protection where they make a substantial financial, physical or human investment in its production.

Producers of data bases in other States members of the European Union or of the European Economic Zone enjoy protection of French law.

Producers of data bases may prohibit:

- Extractions, by either permanent or temporary transfer of all or of any qualitatively or quantitatively substantial part thereof by any method or in any form,

- Uses of all or of any qualitatively or quantitatively substantial part thereof by any method or in any form,

- Repeated and systematic uses of any qualitatively or quantitatively non-substantial part thereof by any method or in any form when such uses manifestly exceed the normal use of the data base.

Once a data base has been made available to the public, its producer may not object to

- Extractions of any qualitatively or quantitatively substantial part thereof by any person with legitimate access,

- Extractions for private use of any qualitatively or quantitatively substantial part of any non-electronic data base subject to rights of authors or neighboring rights in the works or elements thereof.

The first sale within the European Union of the European Economic Zone exhaust the rights of the rights holders  or by persons acting with their consent with respect to resales of the such material copy.

However the online communication of a data base does not exhaust the producer's right to control the resale throughout the European Community and the countries of the European Economic Zone of material copies of such data bases.

Rights in data bases have a term of 15 years from the first of January of the year following their completion, which term is extended in the event of a substantial investment in its improvement.

Counterfeiting of data bases is sanctioned by fines of up to 150,000 Euros and up to two years imprisonment.

Repeat offenders are subject to penalties of twice the gravity of the foregoing.

Corporations may be pursued under criminal laws for counterfeiting of data bases.
 

Microprocessors

The final or intermediate topographies of semi-conductors which reflect an intellectual effort of their creator, unless same is ordinary, may be registered to obtain protection.

Such registration may not occur more than two years after the topography was first commercially exploited not more than 15 years after it was first fixed or coded for the first time if it were never to have been exploited.

Producers of microprocessors from other States members of the European Union or of the European Economic Zone enjoy protection of French law.

The first sale within the European Union of the European Economic Zone exhaust the rights of the rights holders  or by persons acting with their consent with respect to resales of the such material copy.