Contrary to the myth of the author and inventor until the 18th century, who was imagined as creating alone in a stroke of genius, intellectual creation (whether artistic or technical) is increasingly the result of group work and notably orders placed with employees. Contrary to what many believe, employees often have rights to their creations, especially in terms of copyright (I) but also in terms of patents (II).

I. Copyright

In accordance with the provisions of Article L111-1 of the Intellectual Property Code, the author of a work has rights over the work. The article makes no distinction between authors creating independently and employee authors. The employee must in any case prove that his creation is original, that is, it bears the imprint of the personality of its author.

However, there is a simple principle of contract interpretation that where the law does not distinguish, there is no need to distinguish. As a result, an employee who creates a work in the performance of his employment contract holds the copyright to his creation.

This situation surprises many employers and even employees, especially since the solution is not universally shared. Indeed, under American law, “work made for hire” gives the employer copyright over a work created by her employee as soon as the work is created in the course of the employee’s employment contract or when the work is created pursuant to a written agreement between the creator and the commissioner, and if the work contributes to a collective work, an audiovisual work, a translation, an additional work, a compilation, an instruction text, a test, or for an atlas. In these two situations, the rights holder is not the creator of the work but the employer or the commissioner.

However, there are situations in which the employee who creates during the performance of her employment contract will not own copyright over the work.

This is particularly the case when the work qualifies for the notion of “collective work”. This is the case where several people contribute to the creation of a work at the request of a legal or natural person (it can therefore be the employer) and the contributions of each person cannot be distinguished. In this case, the copyright arises on the head of the person originating the request (usually the employer). This is a fairly common model in many sectors (especially in the fashion industry).

Another exception has been introduced in the field of software (Article L. 611-7 of the French Intellectual Property Code). The exception includes the software (i.e., all programs, processes, and rules) and its preparatory materials. Indeed, software developers do not hold copyright over their creation(s) as soon as the software is developed in the performance of the employment contract. The employer holds the economic rights to the work (this is referred to as the devolution of the employee’s rights to the employer). In this case, the Intellectual Property Code provides no financial compensation for the employee. The employer remains the rights holder even after the termination of the employment contract. However, the employee retains her moral rights, which are nevertheless limited as the right of withdrawal or repentance is not opposable by the employee, and the employee cannot oppose the modification of the software unless it results in harm to her honor or reputation. The employee retains her right of paternity and the right of disclosure (which is practically difficult to oppose, since it could result in sanctions being applied by the employer for violation of the duty of loyalty).

In addition, for journalists, article L. 132-36 of the Intellectual Property Code provides, for journalists intervening on a permanent or occasional basis, unless otherwise stipulated, for the exclusive assignment to the employer of the exploitation rights of the journalist’s works carried out within the framework of the title. For journalists, the assignment is made by the employment contract.

Civil servants have their rights assigned to the public authority if the work is created in the performance of their duties or according to the instructions received if the creation is strictly necessary for the accomplishment of a public service mission. The agent may publish her work subject to asking her hierarchical authority if it intends to avail itself of its preferential publication right. The moral rights of the agent are reduced since she cannot oppose the modification of the work except when the modification harms her honor or reputation.

In any case, if the employee is not placed in any of the situations in which rights may arise on the head of the employer, it is still possible to provide in the employment contract an assignment of copyright as they develop, respecting all the mandatory mentions provided for by the Intellectual Property Code (it will notably be necessary for the works to be determinable). The contract must comply with the mandatory formalism set out in Article L. 131-3 of the Intellectual Property Code. In the event of non-compliance with the mandatory mentions, the assignment will be void, and the employer will incur liability for infringement. The excuse of good faith will not be accepted by the Courts. It is particularly important to specify in detail the rights assigned. For example, an employer who did not specify in the assignment contract that the logo created by the employee would be used for the company’s brand incurred liability for infringement. Everything that has not been specified in the contract remains in the hands of the employee.

Even in the case of assignment of copyright or benefiting from an exception, the employee author continues to benefit from her moral rights. Moral rights consist of the right of disclosure, right of paternity, right to integrity, and right to withdrawal. These rights are inalienable and imprescriptible. Consequently, the employer is required to respect them.

In the absence of a copyright assignment contract or benefiting from an exception, the damage suffered is often estimated to be equal to the amount of the license fee that should have been paid to the author. Employees are increasingly resorting to legal action in judicial courts to enforce their copyright. This presents several strategic interests, notably to increase the claims of the employee and possibly seek an amicable solution to the dispute but also to plead a dispute before specialized courts whose decisions are often more predictable than those of industrial tribunals in the first instance.

The regime for employees also applies to interns and apprentices.

II. Patents

Contrary to creations protected by copyright, employees’ inventions belong to the employer. The same goes for civil servants.

However, interns qualify as inventors and can therefore file patents resulting from their work during their internships. The conclusion of an agreement can effectively protect the internship supervisor.

The question arose as to whether the rule applied to French patents or to inventions created within the framework of an employment contract subject to French law. Since the rules applicable for the attribution of inventions result from the employment contract, it is the law of the employment contract that applies. In concrete terms, this means that an employee performing a French law contract abroad (for example, as part of a mission) will be subject to French devolution rules even if his invention was created in China or the United States.

The regime of employee invention implies that the inventor created within the framework of the performance of his employment contract. The French Intellectual Property Code distinguishes between inventions within the mission, inventions outside the mission and non-attributable inventions.

An invention is said to be within the mission when it is made by the employee within the framework of the performance of his employment contract including an inventive mission corresponding to his effective functions, either of studies and research explicitly entrusted to him. The determining element lies in the hierarchical prescription of the employer. This scheme entails the assignment to the employer of the invention. However, the employer must pay additional remuneration in accordance with the collective agreement

, the applicable company agreement, or the employment contract.

Inventions known as assignable missions cover inventions created under the influence of the employment contract or not. When an invention is made by an employee either in the course of the performance of his functions, or in the field of the company’s activities, or by the knowledge or use of techniques or means specific to the company, or data provided by it, the employer has the option of assigning the right to the invention. The employer must pay a fair price.

Finally, non-attributable non-mission inventions include inventions that do not fall under the two aforementioned categories. The employee is the inventor of the patent.

For any questions regarding the rights of employees and employers regarding intellectual creations, the firm remains at your disposal.

Link to the video on the subject of employees and intellectual creations: TO BE COMPLETED

Useful links:
INPI on the subject of employee inventors: The inventor is an employee | INPI.fr
Article from the website dedicated to members of the social and economic committee: Intellectual property clause and invention | Guide (2024) (cse-guide.fr)