Ownership of software: the company is not always … – Village Justice (Blog)

1. The rules relating to copyright and software related holders

The software is an intellectual work protected by copyright [1] .

However, this protection is not automatically acquired, the original character of the software is a prerequisite to protection. The originality of a work can be defined as what distinguishes the work of others. Applied to software, the originality of the custom spring from its author effort beyond the mere implementation of an automatic and binding logic. The materialization of this effort lies in an individualized structure. [2]

According to the principle laid down by Article L.113-1 of the Code of Intellectual Property (ICC), “ The copyright belong, unless proved otherwise, to the person or persons in whose name the work is disclosed. ”

the copyright holder of this software can be an individual, the developer of the program or a corporation, the company in which the software was developed. Specifically, a company can be considered copyright holder of software in three cases:

1 – the software is described as collective work in this hypothesis, the contribution of each person involved in the development of the software merges into a set does not distinguish the work of each. This software may be the property of the company that is at the initiative of development, and publishes under the name of which it is distributed. The company will be invested copyright;

2 – the software is developed by an employee of the company Article L.113-9 of CPI provides that “ property rights on software and its documentation created by one or more employees in the exercise of their duties or following the instructions of their employers are vested in the employer alone is entitled to exercise the “, unless otherwise stipulated or statutory provisions (specified in the employment contract). However, this provision does not apply to all employees and excludes others to the company, even acting on its behalf, such as students, temporary workers, consultants seconded by a computer service, independent consultants, etc.

3 – the software is sold as part of a copyright transfer agreement : in this case the software was developed by a person or persons cede economic rights to the company. To be valid, the assignment must meet the basic conditions and specific form provided by law [3] .

Finally, the author of Software holds on it intellectual property rights, including economic rights (including the right to exploit and distribute the software, and derive income) and moral rights (the right to quote and respect for the integrity the work). The software may not be operated or used by third parties without the author’s agreement. Any unauthorized use of the software (reproduction or distribution without the express permission of the author) will be described infringement, under L.335-2 and following of the ICC.

2 . The decision Societies Orqual c / Tridim and others of the Court of Cassation

In this case, a professor of medicine and a computer were combined to create a common structure, the Company Tridim . This company had corporate purpose design, creation, production and distribution of medical analysis software. Their collaboration has enabled the development of two software called Tridim-Cephalometry Architectural Delaire 2008 and 2010.

The two partners then decided to separate, professor of medicine becoming manager of the majority society and Tridim the computer creating two new companies (Orqual and Orthalis) to market software.

A disagreement over the ownership of copyright in both software developed during their collaboration in the company led Tridim the manager of Orqual and Orthalis companies to block the access codes to such software to Tridim society. In response, the company has assigned Tridim both companies in order to recognize that it was the only copyright owner.

Having been unsuccessful at first instance, the Tridim company has appealed the judgment. The Court of Appeal of Rennes, in a judgment of 28 May 2013, upheld its demands, considering that software should be considered as collective work, in that “ their development is the result of work associates “. Consequently, the company would Tridim copyright owner of these two programs.

Challenging the decision, and Orqual Orthalis companies have appealed in cassation. [4 ]

In a judgment of 15 January 2015, the Supreme Court quashed the appeal judgment on the basis of Article L.113-1 of the CPI, rejecting analysis that software development is the result of the work of the two partners, the Tridim company owned the copyright. According to the judges, “ a corporation can have authorship ” and in particular because in this case the authors’ contributions to software development were of different natures (first, code development for the computer, on the other hand, addition of elements “job” for medical professor), and were not based in a set to qualify these works of “collective”.

In addition, although this has not been clarified by the Court, it should be noted that the company could Tridim or follow the copyright holder the grounds that the software had been developed by employees, since these are the two managers who developed the software, nor claim any rights transfer agreement on software.

Finally, the disputed software could be described as work collaboration, defined in Article L.113-3 of the ICC as the common property of the co-authors (natural persons). However, the co-authors shall exercise their rights by mutual agreement, which was not the case here.

As a result, the manager of the company Tridim, although it had contributed in the development of two contentious software is forbidden exploitation, lack of contractual agreement with his co-author.

This decision illustrates the need for companies to reflect, for each IT project, ownership of copyrights and when necessary, manage intellectual property rights on developments, by contract.

[1] Article L.112-2 of the Code of Intellectual Property

[2] See Cass. Civ., October 17, 2012, Codix c. Alix, and our article “The criteria of originality as a condition for protection of software by copyright, recalled by the Court of Cassation”

[3] article L.131-3 al.1 CPI

[4] Cass., 1st c. Civ., Jan. 15, 2015, Companies Orqual c / Tridim and other