II/Difficulties of application of the legal rules on
Internet
A.
Difficulties in the application of the royalty vis-a-vis certain categories of
works
Sometimes the royalties seem misfits with the new categories
of works or simply with the digitalization of older categories. Without
requiring the creation of a specific right for these categories, it is
advisable to raise lawful installations which were carried out or should be it,
under penalty of seeing the inapplicable law or to paralyze the creative
activity of more undertaking.
1) Works
multi-media
A multi-media product seems a product of a new generation,
which must be protected, although it has evil to be integrated in the
traditional diagrams of the royalty.
· The inaccuracy in the transfer of the
royalties
The multi-media product being generally the fruit of the work
of one or more employees, it is necessary to wonder on the protection of the
authors bound by a contract of employment, and in particular about the
conditions of the transfer of the patrimonial rights to the employer.
For a long time, part of jurisprudence adopted a position
favorable to the employer, in spite of the legal provisions, by admitting the
idea of an implicit transfer since this one is limited to the normal activity
of the company, and that the employees are authors of works created within the
framework of a contract of employment. The civil Room of the Supreme court of
appeal seems to have put an end to this position in a stop of December 16,
1992. There thus should be considered that a priori, it can be neither transfer
automatic, nor tacit transfer of the rights of the employee. A particular
clause of the contract of employment will have to clear up this situation.
· Difficulties in the determination of the
authors
As regards play on multi-media support, the difficulty lies in
the determination, among all the speakers on the play, of those which can
assert the quality of author. For example, the author of the software, i.e.
data-processing engine cannot assert the statute of author. On the other hand,
for the authors at the origin of the creation of the multi-media play, their
quality of author will rise from the type of service which they will have
carried out, which is rather vague and difficult to evaluate. Thus, a computer
graphics expert can claim the statute of author, if its intervention is not
limited solely to final improvement of images, but which it works out of all
parts of the images and the animated sequences. The editor of play thus must,
as of the development of the play, to define by contract the mission of each
one. However, it must avoid conferring the statute of author on of speakers
with the risk to too much see multiplying the sources of litigations, in
particular as regards moral right.
2) Software
In their great majority, the software and computer programs
are today the creations carried out by employees. The law allotted here the
patrimonial prerogatives of the royalty to the employer and cold the
prerogatives morals of the author, dissociating royalty traditional to approach
the concept of copyright
Indeed, by the law May 10, 1994 of the code of the
Intellectual Property, the employer is the holder of the software created by an
employee in the usual exercise of his occupation or following research
specifically entrusted to the employee and which does not enter its usual
functions. The employee remains certainly invested of his moral right on his
creation, but this one is limited to faculty to assert the paternity of the
design and the realization.
In addition, the software is theoretically protected by the
royalty and sometimes not by the substantive patent law but, in practice, the
European Patent Office agrees to patent an invention using a software and
agreement APDIC (Agreement on the aspects of the rights of ownership
intellectual which touches with the trade) does not exclude either the
patentability of the software. The current situation thus accepts the two types
of protection, but it seems necessary to clarify this situation, which can be
at the origin of ambiguities in particular on the level of the office plurality
of two protections.
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