Royalty

The royalty breaks up into two parts: Patrimonial Moral rights and Rights. Juridically, it forms an autonomous category of patrimonial rights, because it is neither a real Droit bearing on a thing, nor a Droit of credit exerted against a debtor.

The Anglo-Saxon right knows the concept of copyright which recovers only the patrimonial share of the royalty (see will infra for the distinction between these two concepts).

These rights constitute the essential component of the Literary property and artistic and scientist, although they are completely distinct from the Property right since they are not rights in rem. The use of the term Intellectual property was born from an approximate translation from” meaning “English “property well” and not “property”. According to Picardy Edmond, it is appropriate to use the term intellectual right which is more correct from a legal point of view. However, good number of authors of doctrines consider that it is indeed a form of property, at least as regards the patrimonial right (v. will infra).

However, when it is about a intellectual right which relates to a work of the Esprit, the public can (under certain conditions) use it if he quotes the author. The author has only the right to prevent any modification and derivation of his work.

The royalty gives to the author an exclusive right exploitation on its work. For example, a writer has rights on his literary works. He has the monopoly of exploitation of his works, which enables him to negotiate the publication of work by an editor, realizing remuneration (royalties). This exploitation of its work is the exercise of a patrimonial right because it benefits pecuniary from it. Moreover, the author also holds a Moral right on his work, which is extrapatrimonial, and classified in the category of the rights of the personality. This moral right makes it possible the author to make respect his work, for example to make some prohibit the modification.

There exist two cases of entry in the Public domain:

  • that of the authors: a work falls into the public domain when the patrimonial right are exhausted. It is the case, for example in Droit of the European Union, 70 years after the death of sound Auteur.

  • that of the recording: for example, in France and Switzerland, the interpretation of a work falls into the public domain 50 years after the first publication from its recording.

It is thus paramount to get information, because very often, the sound records of classical music are free royalties but remain protected on the level from the rights of the producers.

Royalty and Copyright

The royalty relates to the Literary property and artistic and scientist. The first changing of the family of the French right, whereas the second changing of the Anglo-Saxon right.

But since the adhesion of a majority of nations to the Convention of Bern on the royalty (signed by 163 countries), this distinction does not have any more a raison d'être and the two terms are thus partly synonymous.

The royalty rests on the idea of a right personal of the author or an editor, founded on a form of identity between the author and his creation. The moral right is thus constitutive of the attachment of the royalty to the person of the author rather than to work: he recognizes in work the expression of the person of the author, and thus protects it on the same basis.

The protection of the copyright is limited to the strict sphere of work, without considering moral attribute with the author in relation to his work, except its paternity; it is not any more the author itself, but the Having right which determines the methods of the use of a work.

Principles

Bases

The bases of the royalty are traditionally presented like resulting from an approach naturalist. This one is dismembered in two currents: design based on work, derived from work of John Locke, the theory of the personality in addition, derived from the writings of Kant and Hegel. Just like the right of the Intellectual property of which it proceeds, the royalty is founded on the design lockienne of the Propriété. As being conscious and thinking, the Man is owner of itself. However, by his work, the Man mingles so that nature gave him part of itself. Consequently, he is owner of the result of his work, as this one incorporates part of itself ( two Treaties of the civil government (1690), the Essai on the human understanding (II, 27,9)). The original idea, mingling the conscience with its author with data of nature, is thus subjected to the purest form of the property.

However, this design, from which the concept of copyright is directly resulting, recovers only part of the royalty.

The second branch of the approach naturalist, namely, the theory of the personality, apprehends work like a projection of the personality of the author. For Kant, the bond which links the creator and his work must be included/understood like an integral part of the personality of the author. For Hegel, it is the demonstration of will of the latter, whose fruit constitutes the work, which founds the right. The theory of the personality thus highlights singularly the role of the creator. They are thus presented in the form of a base particularly adapted to the designs Frenchwoman and allemande of the royalty.

Field of application

If the protection of the royalty extends to the expressions, it does not include/understand the ideas, procedures, methods of operation or concepts mathematical. This principle was confirmed by the Agreement on the aspects of the intellectual property laws which touch with trade (ADPIC) of the World Trade organization, as well as the Treaty of OMPI (Worldwide organization of the Intellectual property) on the royalty.

The patent, as for him, confers an exclusive right on an invention, which is a product or a process offering a new manner of doing something or bringing a new technical solution to a problem. With regard to the computer programs, the generally accepted principle is that the programs are under protection of the royalty while the apparatuses which use the programs or the inventions related to the programs must be protected by the patent.

The software is protected by the royalty. The European directive of the May 14th 1991 devotes the legal protection of the computer programs by the royalty. This European directive closes the debate on the type of protection to be adopted for the software. The “doctrinal excuses” were many and long, but a certain number of decisions converged towards a recognition of the software like works intellectual concerned with the royalty. Software as well as the preparatory hardware of design, i.e. the whole of work of design leading to the development of a program (in the condition however that they are likely to allow the realization of a computer program at a later stage) are of thus the nature of work of the Esprit and profit for this reason from a protection based on the royalty (this royalty data-processing also direct copyright from an international point of view is named), in the only condition which they are original, and thus that they carry the intellectual mark of their author.

History of the royalty in France

Born with printing works, the royalty is an old institution. Until the French revolution, it was a privilege granted by the King (protection by category), the authors publishing in a system of brotherhood (the academies: the authors bring their work within a collective framework but are not owners). Despite everything they are entitled to a remuneration during the use of their work. With the French revolution, they lose all.

Seven revolutionary laws are invented between 1791-1793 and will remain in force until 1957. Meanwhile rights were granted by the courts.

Law of March 11th 1957: it is the base of the royalties. Innovation created compared to the radio and on television. It fixes the work carried out by the courts before. Law of July 3rd, 1985: rights of the interpreters and the investors, it protects also the software. Installation of legal license. Law n° 92-597 of July 1st, 1992: code intellectual property.

Law of August 1st 2006: This law was created following the appearance of Internet and the numerical one. It rises from a first bill of November 2006 but does not have anything any more to see with this one. It is created following a pressure of the Parliament. It is an American law which is at the base of all, resulting from the problems arising from Internet between 1992 and 1995: International treaty of the royalty: Worldwide organization of the Intellectual property. The states begin in a collective law: the directive of 2001. In France, in 2004, the law is still not transposed. One arrives there in August 2006 (France is the last country to have transcribed the directive). Into full in the lawsuit with the peer to peer , this law is politicized and becomes a left stake right-hand side/. There are many antagonisms in this law.

The emergence of the royalty is closely related to two elements, on the one hand the improvement of the techniques of reproduction of the writings, and on the other hand the constitution of the concept even of author and the fundamental unit of the author and work.

Moral right

The moral right of the author constitutes a subjective concept, related to the capacities of reproduction of works. Can one indeed speak about Plagiat when the reproduction of a book implies to make a complete copy with the hand of it? However, the existence of the concept of moral right of an author can be connected to the attribution of works to a quite precise author. In this direction, the moral right existed already in the Antiquité, with the attribution of Iliade with Homère. However, it should be noted that the concept of such a right was not systematic, and varied according to the opinion prévalente concerning work as a personal expression of an individual. Thus, the whole of the corpus of the Gregorian chants is anonymous. One can however consider that the figure of the author as creator, and consequently owner of his creation, continues starting from the end of the Middle Ages, to become impossible to circumvent in Europe with the Renaissance.

Patrimonial right

Until the 17th century, the essence of creation rested on the Mécénat or the own resources of the artists. With the improvement of the techniques of Reproduction and the generalization of the access to the writing a new class of authors emerges of which capacity with being diffused initially, then the incomes in the second time, are increasingly related to the capacity to make a profit on the sale of the books. This profit being divided between the editor and the author, the interests of the ones and others are, as of the 17th century in England, presented like interdependent. This image of solidarity thus explains the variation existing right from the start between the philosophical bases of the copyright and the legal form which this right takes, with the editor like intermediary impossible to circumvent.

Legislations on the royalties

Any intellectual work belongs to an author who supremely judges his diffusion during a given time. For this period, any copy, any republication without the assent of the author are prohibited. The law envisages a certain number of exceptions to the exercise of this right.

International law

The majority of the States are signatories of the Convention of Bern, which defines certain a number of standards and common rules as regards royalty, and in particular a duration of minimal protection of 50 years postmortem.

European Union

The EU law are harmonized since July 1st 1995, date of coming into effect of the European directive 93/98/CE, which fixes in particular the duration of protection at 70 years postmortem. This directive was supplemented by the directives 2001/29/CE and 2006/116/EC.

In France

The Code of the intellectual property (CPI) defines the royalties. This legislation conforms to the directive 2001/29/What harmonizes the protection of the royalties in the European Union. It recovers “all works of the spirit, whatever are the kind, the form of expression, the merit or the destination” (L.112-1 article of the Code of the intellectual property). “Work famous is created, independently of any public disclosure, the only fact of the realization, even unfinished, of the design of the author” (L.111-2 article of CPI). The royalties can for example relate to avoid-shock of car. In addition, it would seem that one cannot prohibit the transit on the French territory of parts not respecting the royalty in France, if they respect it in other Convention countries.

The author has on his creation two types of right:

  • moral rights,
  • patrimonial rights.

There exist also the Droits neighbors of the royalty valid approximately 50 years following the year of the first interpretation for the artists interpreters.

Holders of the royalty

The quality of author belongs, except contrary proof, with that or those under the name of which work is revealed. (L113-1 CPI)

The code of the intellectual property distinguishes, in three categories of works, works calling upon a plurality of authors: (L 113-2 CPI)

  • works of collaboration: creation whose several natural persons contributed.

  • composite works: the new work to which a preexistent work without the collaboration of the author of the latter is built-in.
  • collective works: collective work is that which is created on the initiative of a natural person or morals, which publishes it, publishes it and reveals it under its direction and its name, and in which the personal contribution of the various authors is melted in the whole in sight of which it is conceived, without it being possible to allot to each one of them a distinct right on the unit carried out.

Moral right

The Moral right aims protecting “the personality” from the author through his work and at respecting this one. It consists for the author with the right to the “respect of its name, its quality, its work”, short its image, its notoriety (Article L. 121-1).

The moral right gathers several rights, which led the doctrines sometimes to speak about “moral rights” rather than of “moral right”:

  • right of disclosure: it makes it possible the author to decide when its work is finished and that it can be revealed with the public.

  • right of paternity: the author has the right to assert the paternity of his work. That generally results in the mention of the author at the time of the exploitation of work.
  • right to the respect of the integrity of work: the author can be opposed to all modifications, deformations or mutilations of his work (the application of this right is however moderate in recent jurisprudence).
  • right of retirement and of repentance which consists with the withdrawal by the author of its already revealed work of the sphere of the market n the other hand of an financial equalization with height of the damage undergone by the diffuser.
  • right to be opposed to very reached prejudicial to the honor and the reputation.

The moral right is attached to the person of the author.

  • It is inalienable: it is thus not transferable (the author cannot sell it). On the other hand, it is transmissible with its death with the heirs or executors.
  • It is perpetual.
  • It is imprescriptible.

Patrimonial right

There in addition exist patrimonial right , which them are transferable, and relate to the exploitation of work.

In this category of rights, one distinguishes mainly:

  • reproduction right: this right includes/understands the possibility that the author has to authorize the copy of all or of part of its work and to lay down the methods of the latter.
  • right of representation: by this right, the author can give his authorization to the representation or the public execution of his work. The public character is particularly important. It includes in particular the Droit of public presentation of the artists Plasticien S and the Photographe S.

A simple criterion makes it possible to distinguish the right of representation and the reproduction right: control of the support. When the recipient of the exploitation to the control of the support, one speaks about reproduction. In the contrary case, one speaks about representation.

Thus on Internet, the fact of visualizing a page is a representation, the fact of recording it on its hard drive is a reproduction.

One can also find other rights patrimonial additional, such as the right of translation, the right of adaptation and the right of destination.

These rights can be the subject of a transfer. These rights, which belong to the inheritance of the author, make it possible the author to withdraw the economic benefit of its work: they open right to remuneration.

There exist two types of remuneration:

  • a direct remuneration of the authors which consists in obtaining direct incomes, in general by the payment of the consumers (books, Cd,…) or by that of intermediaries (purchases of rights of television by the diffusers, starts from the sales turnover of the diffuser,…)
  • an indirect remuneration which consists in making sure of an increase of incomes by various mechanisms, for example at the time of modification of reproducibility (remuneration for Private copy), for uses which do not allow a unit control of the exploitations (scale of the discotheques) or for goods not-rivals by nature (television and radio by the royalty or the legal license) or by the Rémunération under the loan in library. This remuneration results in general in an absence of direct payment by the consumers of works or the programs.

Duration

The duration of the patrimonial rights covers the life of the author. With the death of the author, this right persists for the benefit of its having right during the calendar year in progress and the 70 years which follow (article L. 123-1 of CPI).

To these 70 years are added:

  • for musical works, of the Prorogations of war being able to reach 14 years and 272 days (Article 123.8 and 123.9 of CPI)
  • thirty years additional if the author is “Mort for France” (Article 123.10 of CPI).
Foot-note : The Court of appeal, by its decision of February 27th, 2007, clearly established that the Prorogations of war are not not cumulable with the 70 years deadline, except certain precise cases (and initially, in the case of musical works).

See also: Extensions of war

In addition:

  • In the case of a work of collaboration, it is the date of the death of the last collaborator who is used as reference (article);
  • in the case of a audio-visual work, works of collaboration, it is the same thing but the collaborators are precisely named: scenario writer, author of the words, author of the musical compositions, principal realizer (article);
  • in the case of a work under pseudonym, anonymity or collective, it is the publication date which is taken except so by after the authors are made known (article);
  • in the case of posthumous works, it is always the normal time 70 years after the death of the author, possibly extended, which covers them. If they are revealed only after this amount of time 70 years, the time of protection falls at 25 years starting from January 1st the year from publication (article),

See also: Public domain, in right of the intellectual property

The works having finished their commercial life but still protected by the royalty belong to what one calls the grey area .

In Belgium

The use of visual works is subjected to the conditions envisaged in the law of June 30th, 1994, which one can quote mainly:
  • prior approval : no use can be made without prior approval of the author or of its having rights
  • the signature : except prior agreement, the user must mention in an unambiguous way the name of the author of work
  • the respect of the integrity : except prior agreement, the user cannot modify work.

Duration

A work is protected for one 70 years duration after death from its author, after the death of last surviving in the case of collective work.

The moral rights are also prescribed with the expiry of this time.

Photographs

Jurisprudence establishes that “the photographic stereotypes are not protected by the legislation on the royalties that if they are original and constitute intellectual creations”.

More precisely, jurisprudence does not recognize not the individual character of a photograph (necessary for the concept of creation, and thus the use of the royalty) “if photography (...) constitutes only the simple reproduction of a work of art and that (...) it constitutes also a simple reproduction of a given work and revêt a purely informative character”.

In the United States

In the Anglo-Saxon countries, one finds a concept legal cousin of the royalty, the Copyright. It legally protects the authors of works original, literary, dramatic, musical, artistic or answering other qualifiers. This protection applies to the works published like not published.

Compared to European right, it more recovers the protection of the patrimonial rights related to a work that of the moral rights. In the European right, the moral right is constitutive of the attachment of the royalty to the person of the author rather than to work: he recognizes in work the expression of the person of the author, and thus protects it on the same basis. It is limited to the strict sphere of work, without considering moral attribute with the author in relation to his work, except its paternity; it is not any more the author itself, but having it right which determines the methods of the use of a work .

Commonly, the copyright gives to having right the exclusive right exert and authorize thirds to exert the following acts:

  • reproduction of work,
  • preparation of work derived from original work,
  • distribution of copies of work to the public (sale, hiring, loan, transfer), in some form that it is,
  • the public representation of work, with some process that it is.

The federal government legislates on the patents and the royalties, under the terms of a clause of Article I of the Constitution, section 8, which gives to the Congress capacity “to support the useful art and advance in knowledge, ensuring, for a limited time, with the authors and inventors the exclusive right with their respective writings and discoveries”. See also Fair uses and American Loi of extension of the term of the royalties.

The United States encourages the authors to make record their works because in the event of litigation, the federal law grants the doubling of the claimed financial compensations to them. If work is not recorded, the author does not profit from any financial compensation and must assert a possible allowance.

In Canada

According to the Canadian legislation, the duration of the patrimonial rights is of 50 years after the year of death of the author.

Exceptions to the royalty

Any intellectual work has an author who is the only judge of his diffusion during a given time. For this period, any copy, any publication without the assent of the author is prohibited. the law envisages a certain number of exceptions to this principle.

In Canada

See also: equitable Use in Canada

With the Canada, “exceptions to the violations” of the royalty were defined in the Law on the royalty, and appear under the equitable heading Utilization ( to fair dealing in the english language version).

In France

The exceptions to the exercise of the royalty are fixed by the L.122-5 article of the code of the intellectual property:

When work was revealed, the author cannot prohibit:

  1. private and free representations carried out exclusively in a family circle.
  2. copies or reproductions strictly reserved for the private use of the copyist and not intended for a collective use, except for the copies of the works of art intended to be used for ends identical to those for which original work was created and of the copies of a software other than the backup copy established under the conditions envisaged to II of the article L. 122-6-1 as well as copies or reproductions of an electronic database.
The copy must thus be made by the copyist with his own use and the copy should not be realized at collective ends. It is thus not possible to carry out a copy of a copy and to carry out a copy for the account of an other.

On the other hand it is possible to copy a work which one does not have because the law does not specify that the original must be acquired by the copyist. The law also does not specify that the access must be licit, but the law implies it: the copy of an original obtained illegally (by flight, remote loading in violation of the royalties, etc) would be a concealment of counterfeit. Remuneration for private copy makes it possible to make good the economic damage caused by the exercise of this exception.
Un political debate, technique and legal as for the private copy is currently in hand for numeric works. That concerns, in particular, the systems “  anti-copies  ” that one can find on certain supports (CD/DVD) or integrated in the code of the software.

  1. Provided the name of the author and the source are indicated clearly (a decree in Council of State fixes the characteristics of the documents and the conditions of their distribution):

    1. analyzes and short quotations justified by the character critical, polemical, teaching, scientific or of information of the work to which they are built-in;
    2. press reviews;
    3. diffusion, even integral, by the way of press or remote transmission, as information of topicality, of the speeches intended for the public pronounced in the assemblies political, administrative, legal or academic, like in the public meetings of a political nature and the official ceremonies;
    4. reproductions, integrals or partial of graphic works of art or figures intended to appear in the catalog of a sale by order of the court carried out in France for the specimens placed at the disposal of the public before the sale with an only aim of describing the works of art put on sale.
  2. the parody, the pastiche and the caricature, taking into account the laws of kind.
  3. acts necessary to the access to the contents of an electronic database for the needs and within the operational limits envisaged by contract”

In the United Kingdom

With the the United Kingdom, the to fair dealing consists of “allowed acts” ( Acts Permitted in Relation to Copyright Works ) appearing in Chapter III of the Copyright, Designs and Patents Act 1988 (C. 48). In the event of litigation, these statutory provisions do not cancel of anything jurisprudence Common law which make it possible to the defendant to call upon the equitable use ( to fair dealing ) or the concept of public interest ( public interest ).

In December 2006, Sir Paul McCartney and groups it U2 required publicly that the copyright on the Audiogramme S, 50 years, be extended to 95 years and thus aligned on that of the United States. It is advisable to notice that this call intervenes at the time when the first titles of the golden age of the British Pop music are about to fall into the public domain, to start with those of Cliff Richard and the Shadows.

  • Communicated in Financial Times

Management companies of the royalties

See also: Management company of the royalties

The royalties are generally managed not by the recipients themselves, but by bodies of collective management. Here are some examples:

  • Belgium: SABAM mainly for literary works, SOFAM mainly for graphic works, SAJ mainly for works of the journalists.

  • Canada: Access Copyright, COPIBEC, SOCAN. See also Commission of the royalty of Canada: Management companies of royalties (complete listing).
  • France: SACEM, ADAGP, SACD, the Scam, CSDEM, SAIF.
  • Swiss: SUISA .
  • Italy: SIAE .

See too

Internal bonds

References

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