Written by Claire Denoual and Claire Leonelli - Avocats à la Cour
Published on 8.12.2018 - Paperjam.
The Internet is full of various intellectual creations (texts, videos, photographs, music, etc.). However, content freely accessible on the Internet cannot necessarily be reproduced or distributed without prior authorization. What precautions should be taken in practice?
Who says copyright, says potentially infringement and sanctions such as damages...
Copyright protects creations whose intellectual expression is specific to their author, and this from their creation and without any formality of deposit or prior registration. The merit and the destination (commercial or non-commercial) being indifferent, the field of application is extremely broad: texts, illustrations, maps, photos, music, videos, etc. Copyright allows the owner to authorize (and therefore to prohibit) the reproduction and distribution of the work, if necessary in exchange for payment, generally up to 70 years after the death of the author. The author also has the right to be mentioned as such in any use of his work. Certain exceptions to copyright exist, notably in favor of teaching and research, but they are strictly interpreted and the simple fact that the work is freely accessible on the Internet is not one of them.
Therefore, what precautions should be taken when one wishes to reuse content available on the Internet?
Content presented as "free of rights" does not necessarily mean that it can be freely reused by anyone.
The most prudent approach is to consider that all content accessible online is potentially subject to copyright, even if there is no mention of "copyright" or "all rights reserved". In the same way, it is advisable to be wary of the indication "free of rights", which is in reality sometimes used to indicate that the contents are reusable under license.
When the content you want to reuse is very old, the copyright on it may have expired. In this case, the work is said to have "fallen into the public domain". It is therefore freely reusable. However, to place oneself on this ground is risky, since if the original work is free of copyright, such as a castle of the XIIIth century for example, the photograph reproducing it can, it, be still subject to copyright...
In practice, it is therefore advisable to ensure that the planned reuses (for example, the integration of an image on a training support and the distribution of said supports to the participants, or its integration on the company's website) are covered by an exception to copyright, or, failing that, to obtain the necessary prior authorizations.
To summarize, there are three different cases:
the Internet site does not include either general conditions of use or indications as to a regime associated with the content. It is advisable in this case to approach the holder of the rights to obtain from him a specific authorization, which can be tedious... Indeed, it can be the author himself or his heirs, the assignee of the rights, such as a publisher, or an organization of collective management to which the author adhered. A research work is thus necessary;
the general conditions of use of the Internet site in question include an "intellectual property" clause that provides for the regime of the site's contents and the conditions of their reuse. This is the case, for example, when one downloads content from image banks. Two important precautions must be taken: (i) check that the license granted does indeed cover the intended uses of the content in question, and (ii) do not exceed the terms of the license;
the content is under a free license, for example under a Creative Commons license. This means that the author has given his consent to certain uses in advance. In concrete terms, anyone can use the content free of charge without having to seek prior permission from the author, as long as they respect the conditions set out in the license. Several types of licenses exist, some of which exclude commercial use of the content, while others do not. The so-called creative commons zero license (CC0) is the most advanced form, since by adhering to this license, the author gives up his copyright on the content. It is therefore necessary to check what the license in question actually allows. For example: Source: http://creativecommons.fr/licences/
What a way to boost internal creativity? Here again, be careful, because the employer is not in principle automatically the owner of the copyright on the works of its employees: in the absence of an express transfer, in the employment contract for example, the copyright remains with the employee. However, there are legal exceptions, in particular for software, which will be the subject of our next article.