RIDA 255 | 04-2018

Case law

Access to literary and artistic property protection

Pierre SIRINELLI, Alexandra BENSAMOUN

Code : 255-CJP
Keywords :
Work, Categories , collective, Protection , Conditions , Originality, photograph, Infringement, joint, of joint authorship, Video game, software, computer program, cinematographic, Website, Parasitism, Unfair competition, Industrial property, Mark

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Even though it is the gateway to authors’ rights, the protected subject matter itself, i.e. the intellectual work, is not defined in the French law. This legislative retreat does not mean, however, that the concept is left to the discretion of the courts. Rather, a flexible legislative technique is implemented, that of framework concepts, dear to Professor Cornu. Through this technique, the legislature establishes the concept (the container) and delegates some of its normative power to the courts by tasking them to fill it with content, while imposing at the same time legal “bounds” (such as the irrelevance of certain criteria, the non-exhaustive list of examples of works, etc.). This dialogue between the legislator and the judge has enabled a wide variety of creations, be they works of pure art or applied art, to be included within the scope of authors’ rights, as well as allowing creations arising from new techniques to be absorbed.

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