France

Chapter Editors: Fabrice Perbost and Alan Walter (Kahn & Associés)1

Introduction to software protection under French law

Body of law

Under article L. 112-2 of the French Intellectual Property Code, software shall be considered as a work of the mind and, as such, are protected in France by copyright law.

Copyright protection of software is regulated under law n° 94-361 of 10 May 1994. This law implements the Council Directive 91/250/EEC of 14 May 1991 on the legal protection of software into French law. It provides specific rules for software, meaning that general copyright law applies to software subject to specific rules provided by the law of 1994.

Object of protection

Under article L. 112-2 of the French Intellectual Property Code, copyright law protects “software including preparatory material”. The Directive of 14 May 1991 defines the preparatory material as “preparatory design work leading to the development of a software provided that the nature of the preparatory work is such that a software can result from it at a later stage”.

Copyright law protects software that is original, of whatever kind, form of expression, merit or purpose. No other criteria may be used to determine whether software can be subject to copyright protection. This means that the source-code and the object-code of software are protected in the same way.

Generally, case law considers that software is original when its author has brought a personal contribution1.

However, ideas and principles, which underlie any element of software, including those which underlie its interfaces, are not protected by copyright.

Authors/Beneficiaries

i) As a rule, authorship shall belong to the natural person who has created the software, whether the author is an employee or not. However, according to article L. 113-1 of the French Intellectual Property Code, it shall belong, unless proved otherwise, to the person or persons under whose name the work has been disclosed.

ii) Furthermore, article L. 113-9 of the French Intellectual Property Code provides that unless otherwise provided by statutory provision or stipulation, the economic rights in the software and its documentation created by one or more employees in the execution of their duties or following the instructions given by their employer shall be the property of the employer and he exclusively shall be entitled to exercise them.

This provision shall also apply to servants of the State, of local authorities and of public establishments of an administrative nature.

iii) When software has been created by two or more persons, it can be a “collective work” or a “collaborative work”.

A collaborative work is work in the creation of which more than one natural person have participated. It shall be the joint property of its authors.

It differs from a collective work, which is a work created at the initiative of a natural or legal person who edits it, publishes it and discloses it under his direction and name. It shall be the property, unless proved otherwise, of the natural or legal person under whose name it has been disclosed.

iv) When a work integrates a preexisting work, without the collaboration of the author of the latter work, it is defined as a “Composite work”. A composite work shall be the property of the author who has produced it, subject to the rights of the author of the preexisting work. This means that the author of the composite work has to (a) obtain the consent of the author of the integrated work for such integration and (b) share with the author of the integrated work the remuneration derived from the composite work.

Exclusive rights

According to article L. 122-6 of the French Intellectual Property Code, the patrimonial rights belonging to the author of the software shall include the right to do or to authorize:

  • any permanent or temporary reproduction of software by any means and in any form, in part or in whole;

  • any translation, adaptation, arrangement or any other alteration of software and the reproduction of the results thereof; and

  • any form of distribution to the public, including the rental, of the original software or of copies thereof.

The right of performance, as defined by article L 122-2 of the French Intellectual Property Code, which is attached to any literary and artistic work, is not expressly mentioned among the exclusive rights of the author of a software.

However, this is not to say that the software author does not enjoy such a right. In particular it could apply to software in the case of downloading.

Reproduction shall consist of the physical fixing of a work by any process permitting it to be communicated to the public in an indirect way. This may be through copying or recording onto any support. Insofar as loading, displaying, running, transmission or storage of the software necessitate such reproduction, such acts shall be possible only with the permission of the author.

Exceptions to Exclusive Rights

According to general copyright rules, article L. 122-6, 3° of the French Intellectual Property Code provides that the first sale of a copy of software on the territory of a Member State of the European Community or of a State party to the agreement on the European Economic Area by the author or with his consent shall exhaust the right of placing on the market of that copy in all Member States, with the exception of the right to authorize further rental of a copy.

Considering the specificity of software, article L. 122-6-1 also provides some exceptions to exclusive rights of the author.

  • The acts referred in article L. 122-6 shall not require the permission of the author where they are necessary for the use of the software by the person entitled to use it in accordance with its intended purpose, including for error correction, unless otherwise specified in the contract. This means that the person entitled to use the program can copy it into his computer in order to run it.

  • A person having the right to use the software may make a backup copy where such is necessary to ensure use of the software.

  • A person having the right to use the software shall be entitled, without the permission of the author, to observe, study or test the functioning of the software in order to determine the ideas and principles which underlie any element of the software if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the software which he is entitled to do.

  • Reproduction of the code of the software or translation of the form of that code shall not require the permission of the author where reproduction or translation within the meaning of article L. 122-6 is indispensable for obtaining the information necessary to achieve the interoperability of independently created software with other software.

However, it is expressly provided that these exceptions to exclusive rights shall not prejudice the normal exploitation of the software or cause unreasonable prejudice to the author’s legitimate interests.

Any stipulation contrary to the provisions of article L. 122-6-1 shall be null and void.

Moral rights

The moral rights of the author include the right to disclose his work, the right for respect for his name and his work and the right of withdrawal.

Nevertheless, the Intellectual Property Code provides some specific rules regarding moral rights over software. It provides that the author may not oppose modifications of the software, in as far as such modifications do not affect his honor or reputation, and exercise his right of withdrawal.

In the absence of specific provisions regarding the right of disclosure, opinion suggests that this right must be recognized as a moral right on software.

Moral rights are perpetual, inalienable and without prescription. This means that an author cannot waive his moral rights on a literary or artistic work or transfer them to a third person.

However, the moral rights may be subject to contractual waivers if they are special and limited. For example, an author can decide not to disclose his identity. The clauses concerning the anonymity are valid as long as the author does not waive definitely the right to his paternity. Anytime the anonymous author can reveal his paternity.

Furthermore, the waiver of right to respect is also valid if it intervenes before any modification of the work.

Term of protection

According to article L. 123-1 of the French Intellectual Property Code, the author shall enjoy, during his lifetime and for 70 years after his death, the exclusive right to exploit his work in any form whatsoever and to derive monetary profit therefrom.

In the case of collaborative works, the calendar year taken into account for the calculation of the 70 years following death shall be that of the death of the last surviving joint author. A “collaborative work” is defined as a work in the creation of which more than one natural person has participated.

In the case of collective works, the term of the exclusive right shall be 70 years from January 1 of the calendar year following that in which the work was published. The same rule is applied for anonymous works or those produced under pseudonym.

Finally, a composite work is protected regardless of the preexisting work, even if the preexisting work has entered the public domain2.

Copyright assignment

Article L. 131-1 of the French Intellectual Property Code provides that the complete assignment of intellectual property rights in future works shall be null and void.

According to the general regime for literary and artistic works, assignment of the exclusive rights on software may be total or partial. The assigned rights shall be “separately mentioned in the instrument of assignment and the field of exploitation of the assigned rights being defined as to its scope and purpose, as to place and as to duration3.

Contrary to the general regime, which imposes revenue that is proportional to the revenues derived from sale or exploitation of the work, article L. 131-4 of the French Intellectual Property Code provides that the remuneration due to the author in compensation of the assignment of the software rights can be calculated as a lump sum.

Special Measures

Law n° 2006-961 of 1 August 2006, which implements the Council Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society, provides some specific rules regarding of software.

Beside general measures provided by the Intellectual Property Code to enforce copyright, article L. 335-2-1 provides for sanctions against anyone making publicly available software aimed at providing public access to protected works without authorization.

Furthermore, article L. 331-5 allows rightholders to make use of technological measures designed to prevent or restrict acts not authorized by them. It provides legal protection against circumvention of effective technological measures and against provision of devices and products or services to this effect. Nevertheless, it also specifies that such protection does not apply to the protection of technological measures used in connection with software.

Unprotected software and public domain software

As previously discussed, only original software is protected by copyright.

The original nature of software has been the subject of numerous debates on principles and jurisprudence. Software being a technical work, the notion of originality, which is traditionally defined as reflecting the author’s personality, is difficult to apply to software.

Some authors agree that the reflection of an author’s personality through software would be found principally in «the choice to use one of several possible methods, realized in the final program»4

In this respect, the full assembly of the Court of Cassation held that software was original if it contained the “intellectual contribution” of the author and that originality extended to “a personal effort over and above the simple implementation of a restrictive and automatic software and that the realization of said effort resulted in an individualized structure5.

Software that fails to meet this criterion is not liable to protection under copyright law. This is the case for « applets », for example, which are used for web animation. Such software can be freely executed, reproduced and modified without the author’s permission.

Software that comes into the public domain may also be freely used and reproduced. Given the length of protection afforded under French copyright law it can safely be considered that, at present, no software has yet come into the public domain.

It can be questioned whether software can, at the author’s desire, be created directly in the public domain. Contrary to free licenses, public domain licenses are supposed to make the work in question as freely accessible as if that work had come into the public domain. They suppose that the author has renounced all rights over the software. This type of license would appear to be possible in as far as the author may freely waive his patrimonial rights. The use of the software would, however, be subject to the respect of the moral rights of the author.

Analysis of Free and Open Source Software (FOSS) under French Law

According to the definition of author, «free licenses are licenses through which the author allows the copy, modification and distribution of the work modified or not, concurrently, without transferring the author’s copyright and without the user being able to limit the rights attached to the original work and any derivatives thereof»6.

Free software is not therefore software free of all rights. It is protected by copyright but the source code may be freely executed and modified by the user community. According to the type of license (with or without copyleft), these members of the user community may or may not be charged with allowing other users to benefit from any modifications or improvements by communicating the corresponding source codes.

The determination and the expression of rights between different contributors will depend on the qualification given to the work.

FOSS Definitions

In accordance with the principle of free modification of software distributed under a free license, a certain number of persons will contribute to the evolution of the original software. The modified software may then be defined as a collaborative work, a collective work or a composite work.

The term collective work is applicable if the creation and the disclosure of the software are carried out under the direction of the initial author of the software. This definition allows the latter to benefit from all the rights attached to the software to the detriment of successive contributors.

It would appear equally possible to employ the term collaborative work. This presumes, however, a concerted action on the part of all contributors, an idea which seems incompatible with the nature of a free license. Certain authors feel that this is the definition that comes closest to the spirit of free work. In effect, it has the advantage of taking into account «the global evolutive work and the equality of the authors»7. This definition does, however, present difficulties in that it offers each of the authors an indivisible right over the work.

The final possibility is the definition as a derivative or composite work. According to this definition, each original modification of the software gives rise to a distinct version of the preceding work. It allows the rights of each contributor to be clearly defined, on condition that each modification made to the original software can indeed be individualized. This definition is the most commonly admitted in principle8. It is equally that which appears to have been accepted by the Court of Paris in a decision dated 28 March 20079.

None of the definitions in the Intellectual Property Code take fully into account the specific nature of free software, notably because of it’s evolutionary character linked to the notion of freedom for users to modify. The remainder of the current paper will be based around the definition most commonly admitted, namely of a derivative work.

Copyright

The evolutionary character of free software makes the definition of the rights of each of the authors and contributors extremely complicated. Literary and artistic ownership, which grants the author a monopoly over the application of the work, is effectively difficult to reconcile with the freedoms of use and modification that govern free software.

The definition of free software as a succession of derived works allows the author of each modification to be clearly defined, together with the scope of their rights. Each contributor adding original modifications to the software thus creates an independent work from the modified work. Consequently he enjoys all moral and patrimonial rights pertaining thereto.

Under these circumstances it is important to distinguish the rights of the initial author from those of the contributors.

The initial author is free to determine the fate of his patrimonial rights. Contrary to moral rights, patrimonial rights may be assigned in whole or in part, gifted, or licenses granted. Nothing prevents the author from assigning or awarding operating permissions free of charge10. This free nature is in accordance with article L. 122-7 of the Intellectual Property Code which states that « the right of performance and the right of reproduction may be transferred, for or without payment ». It is therefore up to the author to determine the free use of his work.

Law n°2006-961 of August 2006 concerning the rights of authors and related rights in the information society, introduced, among others, a new article L. 122-7-1 into the Intellectual Property Code which responds to the concern of the legislator to take into consideration the development of the “free” movement. It states that «the author is free to provide his work to the public free of charge subject to the rights of any future co-authors and third parties as well as in respect of any conventions which he may conclude». The provision ‘free of charge’ is thus admitted in French law and recognized by the courts11.

However, it would appear arguable, under copyright law, whether so-called copyleft licenses compel contributors to give up their own patrimonial rights over the work in order that others may freely copy, modify or distribute the program. This assignment of a future right disregards the fundamental right of the author to exploit his work.

Moreover, article L. 131-3 of the Intellectual Property Code imposes the duty to mention each assignation separately in the instrument of assignment and that the field of exploitation be defined as to its scope and purpose. Jurisprudence thus considers that all general assignment clauses be deemed invalid12. The result of this provision, which applies to software and to licenses, is that a free license which grants permission to copy, distribute and to modify, with no further precision, such as the BSD license13, should be held to be null and void. In effect, the principle of strictly interpreting contracts leads to the scope of such permissions being reduced to the methods of exploitation defined in the contract.

However, jurisprudence in this area has shown proof of flexibility. Certain decisions have been based on the real will of the parties14 or actual use15 in order to validate an assignment and to appreciate its scope.

Moral copyrights

The mechanisms of free licenses are based on freedom for licensees to use and to freely modify software. This freedom is liable to clash with the moral rights of the author and those of the different contributors.

Right to disclose

The initial software author exercises his right to disclose through his decision to distribute the software under a free license. He thus authorizes all modes of disclosure of the work, namely copying, distribution and modification.

Licensees also enjoy a personal right to disclose over their contributions where such contribution is of an original character. The scope of this right depends on the conditions of the license under which the software is disclosed.

Certain licenses require that the modified software be disclosed under the same license. Such licenses are known as «Copyleft».

With copyleft licenses the licensee may elect whether or not to disclose his modifications but cannot decide the conditions of such disclosure. The disclosure rights of the author of the modified software are thus considerably limited. However, this limitation of rights does not seem to call into question the principles of copyright law in as far as the composite work remains the property of the author who has created it, subject to the rights of the author of the pre-existing work. The author of the original software may therefore define the conditions under which his work be disclosed without affecting the moral rights of future contributors.

Licenses without copyleft are much more flexible on disclosure rights for contributors. The contributors are free to use and modify the software without subjecting the modified work to the conditions of a free license.

Paternity Rights

Paternity rights over the initial or modified software are not treated uniformly by all free licenses.

Copyleft licenses are extremely detailed on paternity issues for successive authors.

For example, the GPL license16, which is the best known and most widely used free license, requires contributors to indicate their names and to specify the modifications which have been made to the work in order that they are not mistakenly attributed to a third party. Anonymity rights, which result from paternity rights, cannot then be exercised when the software is distributed under a license of this kind.

Right of integrity

Free licenses allow any person who accepts the terms thereof to modify the work.

According to software law the software author cannot object to modifications unless such modifications prejudice his honor or reputation. Modifications to correct or develop a program without the author’s permission are thus valid.

However, prior waiver of all modifications to the software by third parties is contrary to the right of integrity of the work. In effect, jurisprudence underlines the «inalienable right of respect for work, a public order principle, which is opposed to the author abandoning or assigning in a premature or general manner the exclusive enjoyment of use, distribution, withdrawal, addition and changes which this latter may like to carry out»17. Any software modification may therefore expose the author to a future action based on the right to respect for work.

Enforcing FOSS licenses

Contractual Organization

The originality of the distribution of free licenses lies in the fact that the author does not simply disclose his work; he also organizes the use which can be made thereof. He thus allows, through contract and under certain conditions, the copying, transmission and modification of the software that he has created. Any and all persons accepting said conditions enter into a contractual relationship with the author.

The license agreement thus establishes a contractual relationship between the licensees and the initial author. Each licensee who modifies the work by virtue of the permission granted by the initial author enjoys copyright protection for his original contributions. He may then grant the same freedoms over his contributions. Users of the modified work would then find themselves contractually bound, not only to the initial author but also to the authors of subsequent modifications.

In theory users of the modified work must have permission to use and modify the work, not only from the initial author but also from all authors of subsequent modifications.

This being said, certain licenses, such as the GPL, specify that rights over the modified work be granted only by the initial author, to the detriment of the rights of different contributors.

Validity of the Agreement

The validity of such licenses can be called into question under common contract law, or under consumer laws.

From a contract law perspective, it should be noted that free software is generally subject to standard licenses which are real subscription contracts (“take it or leave it”). Acceptance of the license is often by tacit agreement, demonstrated by the carrying out of certain actions allowed by the author. Effectively, it is consistently accepted by the courts that the fact of executing an agreement may constitute acceptance of an offer.18.

Turning to consumer laws, numerous standards are contrary to this type of license. So, if the licensee is a consumer or a non-professional (under the meaning defined by French case law), a certain number of clauses may automatically be considered abusive, such as clauses excluding all guarantee and those limiting or excluding the developer’s liability19.

In the same way certain licenses could find themselves in breach of the French law imposing the use of French language (referred to as the “Toubon law”)20 or the rules covering on-line agreements (e.g. prior information for licensee; «double click» requirement to activate acceptance …)21.

In spite of these notions of French law, the Court of Appeal of Paris indirectly recognized the validity of such free licenses in a decision dated 16 September 200922.

Breach of license conditions

Failure to respect the license provisions constitutes a breach by the licensee of his contractual obligations, but equally a breach of the rules concerning copyright.

In copyleft licenses the free use of software is subject to the condition that the user who adapts the software allows third parties free access to modify the work derived therefrom. According to Professor Gautier, this is a sort of condition subsequent to the legal act, which is generally stated in the license terms23. If the contributor fails to respect the terms of the license, the license is revoked as of right by his fault, without prejudice to any future claims for piracy by the original author.

On that basis, the Court of Appeal of Paris, in a decision dated 16 September 2009, pronounced the revocation of a contract for non-respect of the license conditions, where the licensee failed to provide the source code for the free software that he had modified, removed the original copyright notice referring to the owners of the two files and replaced them with his own, and removed the contents of the license. The Court of Appeal held that the conditions of the GNU GPL had not been respected.

Waiver and liability

The majority of free licenses allow for a limitation or exemption of liability. This is the case with GNU and Mozilla licenses, for example. The question arises as to the validity of such licenses under French law.

Article 1150 of the Civil Code allows for the limitation of contractual liability. Such limitations are valid in the absence of gross negligence or fraud, in as far as they do not refer to an essential obligation in the agreement and if they are agreed between professionals.

Looking at consumer law, clauses which have for purpose «excluding or limiting the non-professional or consumer’s legal rights in the event of failure by the professional to respect any of its obligations whatsoever» are unquestionably deemed abusive and, consequently, held to be null and void24. In order to determine the validity of such clauses, therefore, it is necessary to determine the status of he who modifies the software source code: professional or consumer.

Finally, there is the question of liability for defective products in the realm of free software25, whereby the producer is responsible as of right for material damage and personal injury caused by a defect in his product. Opinion is divided on this point, as to whether such liability can be applied to software. Some authors consider that the law applies only to material products and that article 1386-3 of the Civil Code was not intended to include products of intellectual origin26. It is not impossible that jurisprudence will extend the scope of the law to include intangibles.

Where it is admitted that software falls within the scope of application of liability for defective products, this will only concern professional suppliers. The independent developer, whose profession is not to supply software, is therefore not concerned. The professional developer could take refuge behind the principle of « development risk » which would serve to exclude liability if he could prove that the state of scientific and technical knowledge at the time that the product came into circulation did not allow the existence of the defect to be known. It is with this meaning that the warranty clause in the CeCILL license has been produced27.

FOSS Cases in France

Although it can be said that the free domain generates relatively few cases of litigation, users of free software are nevertheless subject to rules governing use and distribution. Developers and other organizations involved with free software no longer hesitate before pursuing users who fail to respect the conditions of applicable licenses, particularly in matters of distribution.

Three cases have come before the French courts.

i) The first case before the High Court of Paris in November 2008 concerned a claim brought against the access provider Free, by three free software developers. The latter accused Free of distributing the Freebox (the modem provided by the ISP to its customers), containing free software components, in breach of the terms of the associated GPL license. The courts have not yet published a decision on this case.

ii) The second concerns the CNRS, in a case brought by Educaffix28. The latter company had concluded software transfer agreements with several higher education establishments and the CNRS. The transferred software could, however, only work with a free software, JATLite, developed by the University of Stanford under GNU GPL license. Educaffix requested that the contract be declared null and void for fraud on the basis that CNRS had concealed the fact that the existence of the free software included in the transfer agreement required permission from a third party holder of the rights over said free software, in this case the University of Stanford. Further, Educaffix requested that the contract be revoked for the sole fault of CNRS because the exploitation of the transferred software implied by necessity the commission of an act of piracy over the free software.

The court held that “this program has the particular feature of depending on a GNU license which allows free use of the software, but requires a license if the work based on the program can not reasonably be identified as independent and must therefore be considered as a derivative of the JATLite program.

This decision constitutes an application of the provisions of the GNU license and refers to, without directly citing, article 2 of the GNU license according to which «these requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it». Through this decision the judges recognize the contaminant nature of a derived program.

It should be noted, however, that the decision does not recognize the validity of the GNU-GPL license, in as far as it would have been up to the holder of the rights (University of Stanford, or transferee) acting on the legal principle of piracy and requesting the recognition of its rights, which was not the case here.

iii) The validity of the GNU GLP license was finally recognized in a decision issued by the Court of Appeal of Paris dated 16 September 2009.

In this case the National Association for Adult Education (AFPA) issued a call to tender for the implementation of learning spaces, which was finally granted to EDU 4. Raising doubts about the sincerity of the offer submitted by EDU 4, AFPA declared the contract terminated. EDU4 felt that they had delivered in accordance, and sued AFPA for abusive breach of contract, a claim upheld by the High Court of Bobigny in 2004.

Before the Court of Appeal, AFPA claimed that EDU4 had not clearly informed them that a free software had been incorporated into the solution provided, that copyright mentions linked to the software had been modified and that the text of the GNU-GPL license had been removed. The Court of Appeal of Paris upheld the claims made by AFPA and held that EDU4 had failed to respect the terms of the GNU license.

This decision is important because it was feared that France, one of the countries with the highest levels of copyright protection, would deem the free license to be null and void. It also reminds developers who have decided to integrate free software that this decision is not without consequences and that a free software is not a software free of rights.

Legal procedures

Free software developers enjoy several methods of ensuring the respect of their rights. They can act on the bases of contract law or copyright law.

On the basis of contract law, where one of the parties to a license agreement fails to perform his obligations, the other party may call on justice to demand execution of the promised obligation29 or the termination or resolution of the agreement30. That party may also claim damages where the execution becomes impossible or where the failure by the licensee to carry out his obligations results in damages that can be repaired.

On the basis of copyright law, failure by the licensee to respect the terms of the license is tantamount to piracy. Effectively, article L. 335-3 of the Intellectual Property Code states that «the crime of piracy is the violation of one of the rights of an author of software as defined at article L. 122-6». Any and all reproduction, representation, distribution, modification, or marketing of software without the consent of the author is a civil tort and a criminal offence. As a result the licensee can take action in the civil and criminal courts to ensure the respect of his rights. Before the criminal courts the pirate risks 3 years in prison and fines of up to 300,000 Euros31.

Recommended literature

Opinion

S. Basset et Ch. Bigot, Les logiciels open source : quel statut juridique ?, Cahier Lamy droit de l’informatique et des réseaux, April 2003, n° 157, p. 26

Ch. Caron, Les licences de logiciels dits « libres » à l’épreuve du droit français, D. 2003, p. 1556

M. Clément-Fontaine, Les oeuvres libres, Thèse, Montpellier, 2006

M. Clément Fontaine, Licence Publique Générale GNU (GNU GPL), Mémoire DEA, Montpellier, 1999

Y. Dietrich, Logiciels Opensource : une réalité juridique au sein des entreprises, RLDI, April 2005, n° 4, p. 28

P. Gaudillère, Licences de logiciels libres et risques juridiques, Comm. Com. Electr. 2005, étude 16

Ph. Gilliéron, Open Source et droit des brevets, RLDI, February 2007, n° 24, p. 67

B. Jean et A. Zapolsky, La propriété intellectuelle dans l’industrie de l’open source (1ère partie), Gaz. Pal., 24-25 October 2008, p. 19

B. Jean et A. Zapolsky, La propriété intellectuelle dans l’industrie de l’open source (2ème partie), Gaz. Pal., 23-24 January 2009, p. 15

C Rojinsky et V. Grynbaum, Les licences libres et le droit français, Propr. Intell. 2004, n° 4, p. 28

B. de Roquefeuil et M. Bougeaois, Logiciel libre et licence CeCILL, une transposition fidèle des principes de la licence GNU GPL dans un contrat de droit français, Gaz. Pal. 2005, chron. P. 915

L. Schurr, La licence GNU/GPL (V3) a presque deux ans : un bilan mitigé, Gaz. Pal., 22 and 23 April 2009, p. 9

Case law

TGI Paris, 28 March 2007, Educaffix c/ CNRS, Gaz. Pal., n° 22, 22 January 2008, p. 35

CA Paris, 16 September 2009, RG n° 01/24298, SA EDU 4 c/ Association AFPA

1 Cass. Ass.plén., March 1986, : JCP G 1986, II, 20631; Cass. Civ. 1ère, 16 April 1991, : JCP G 1991, II, 21770

2 Cass. Crim., 27 February 1845: DP 1845, 1, p. 130

3 Article L. 131-3 of the French Intellectual Property Code

4 P-Y Gautier, Propriété littéraire et artistique, PUF, 6th edition 2007, n° 532

5 Cass. Ass.plén., 7 March 1986, , préc.

6 M. Clément-Fontaine, Les oeuvres libres, Thèse Montpellier, 2006

7 M. Clément-Fontaine, Les oeuvres libres, préc.

8 See in particular: Ch. Caron, Les licences de logiciels dits “libres” à l’épreuve du droit d’auteur français, Dalloz 2003 p. 1556; M. Vivant, C. le Stanc, L. Rapp., M. Guibal et J-L. Bilon, Lamy Droit de l’informatique et des réseaux, Lamy 2010, n° 2942

9 TGI Paris, 28 March 2007, Educaffix c/ CNRS, Gaz. Pal., n° 22, 22 January 2008, p. 35

10 M. Vivant, La pratique de la gratuité en droit d’auteur, RLDI mai 2010, n° 60 p. 59

11 See in particular: CA Versailles, 20 January 1987, D. 1988, somm. 207 ; Cass. Civ. 1ère, 23 January 2001, Comm. Com. Electr. 2000, comm.. n° 23

12 Cass. 1ère. Civ., 15 February 2005: Légipresse 2005, n° 211, I, p. 65

13 BSD licenses (Berkeley software distribution license) allow all or part of a software subject to such a license to be used without restriction (in particular to be integrated into a free or owned software). In 1999, the BSD License was modified to remove a publicity clause requiring a copyright mention in all advertising or documentation supplied with the software.

14 Cass. Civ. 1ère, 27 May 1986, Bull. Civ. 1986, I, n° 142

15 Cass. Civ 1ère, 15 May 2002, JurisData n° 2002-014336

16 Otherwise known as “GNU General Public License” or “Licence générale publique GNU”.

17 Cass. 1ère civ., 28 January 2003, Bull. civ. I, n° 28

18 Cass. Com., 25 June 1991, Bull. Civ. IV, n° 234

19 Articles L. 132-1 and following, and R. 132-1 and following of the Consumer Code

20 Law n °94-665 of 4 August 1994 concerning use of the French language

21 L. 121-16 and following of the Consumer Code

22 CA Paris, 16 September 2009, RG n° 01/24298, SA EDU 4 c/ Association AFPA

23 P-Y. Gautier, Propriété littéraire et artistique, préc.

24 Article R. 132-1, 6° of the Consumer Code

25 Articles 1386-1 and following of the Civil Code resulting from Law n° 98-389 of 19 May 1998 applying Community Directive n° 85-374 of 25 July 1985 concerning the unification of legislative, regulatory and administrative provisions in Member States on liability for defective products.

26 P. Oudot, Le risque de développement. Contribution au maintien du droit à réparation, thèse Dijon, 2005 ; Ph. Le Tourneau, Droit de la responsabilité et des contrats, Dalloz Action, 2009-2010

Article 9.1: “The Licensee acknowledges that the scientific and technical state-of-the-art when the Software was distributed did not enable all possible uses to be tested and verified, nor for the presence of possible defects to be detected. In this respect, the Licensee’s attention has been drawn to the risks associated with loading, using, modifying and/or developing and reproducing the Software which are reserved for experienced users”

28 TGI Paris, 28 March 2007, préc.

29 Article 1142 of the Civil Code

30 Article 1184 of the Civil Code

31 Article 335-3 of the Intellectual Property Code