According to article L.131-3 of the French Intellectual Property Code, the author can have a remuneration, which can be partial or total, but the transfer by the author of his right can also be made for free. When granted for consideration, the assignment by the author of the rights to his work must include a proportionate participation under article L 131-4 of the Intellectual Property Code, the remuneration must be proportionate to the operating profit. Under the former Act, the parties were left free to adjust their remuneration arrangements. However, the legislator, concerned with the legal certainty of the author, too often tempted by the illusory lure of flat-rate transfers, has since made proportional remuneration a rule regarding the assignment of copyright.
[...] Exception to the rule The article L.131-4 provides cases where the author's remuneration may be calculated as a lump sum.[3] Those cases are listed below: 1° The basis for calculating the proportional participation cannot be practically determined; 2° The means of supervising the participation are lacking; 3° The cost of the calculation and supervising operations would be out of proportion with the expected results; 4° The nature or conditions of exploitation make application of the rule of proportional remuneration impossible, either because the author's contribution does not constitute one of the essential elements of the intellectual creation of the work or because the use of the work is only of an accessory nature in relation to the subject matter exploited; 5° Assignment of rights in software; 6° In the other cases laid down in this Code. B. How is the remuneration calculated Proportional remuneration is a percentage of the profits derived from the exploitation of the work and the author. It must, therefore, include for the benefit of the author the proportional share in the proceeds from the sale or exploitation that is to say a share, a percentage of income. [...]
[...] The Court of Cassation recalls the principle of proportional remuneration is a mandatory rule. "The right of the author to receive a proportionate share of the proceeds from the sale or exploitation of the work is a mandatory rule. Furthermore, the entertainer is obliged to declare to the author or his representatives the exact program of public performances and to provide them with a justified statement of revenue.”[9] III. Critics from legal literature A. Critics related to how the base remuneration is calculated Article L.131-4 of the French Intellectual Property Code rose concerns regarding how is calculate the base remuneration of the author in the publishing contract. [...]
[...] Intellectual Property Code – Proportional remuneration According to article L.131-3 of the French Intellectual Property Code, the author can have a remuneration, which can be partial or total, but the transfer by the author of his right can also be made for free. When granted for consideration, the assignment by the author of the rights to his work must include a proportionate participation under article L 131-4 of the Intellectual Property Code, the remuneration must be proportionate to the operating profit. [...]
[...] The author also has a right of access to financial information enabling them to know the basis of Calculation of their right to proportional remuneration. The jurisdictions rely on the professional practices of the sectors concerned. The courts are very vigilant as to the basis of this remuneration. The general idea is that the latter must be as favorable as possible to the author. Thus, the proportional revenue constituting the “ basis of remuneration” ( “assiette de rémunération”) must be calculated taking into account: - either the price actually paid by the public for access to the work ("the public sale price"), - or the income derived from its operation, Accordingly, the Court of Cassation has traditionally held that the basis for calculating the royalty is calculated on the basis of the sale price to the public, excluding VAT (Court of Cassation, Civil Chamber October 1984).[4] Finally, proportional remuneration is only conceivable if the contracting partner is obliged to operate. [...]
[...] However, they don't owe actual rights on those creation, according to the Court of Cassation. (Court of Cassation, Civil Chamber 24th October, “Base Line” Affair). II. How the courts have interpreted the legislation The courts are favourable to the author, they tend to extend the framework of the legislation. In a decision of the Court of Cassation, it was decided that videotapes where include in the list of assessments by the author. (case related to “videotapes”).[6] A. Interpretation in favour of the author The Court of Cassation confirmed in several cases that the proportional remuneration should be based on the public sales price.[7] Courts also declare clauses against the principle of proportional remuneration as null. [...]
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