Bill no. 1045 on the recognition and ownership of intellectual works

Monaco • Literary and artistic property • Copyright • Neighbouring rights • Performers • Phonogram • Videogram • Audiovisual communication • Software • Rights management and distribution organisation • Copyright societies • Administrative authorisation • Counterfeiting

Bill no. 1045 on the recognition and ownership of intellectual works (104 articles), tabled in Public Session on 14 September 2021 and referred to the Culture and Heritage Committee ("Commission Culture et Patrimoine"), would repeal and replace Law no. 491 of 24 November 1948 on the protection of literary and artistic works, as amended. It is partly inspired by European Union legislation in this area.

Alongside this wide-ranging reform, it should be noted that the resale right of authors of original handwritten, graphic or plastic works was reformed by Law no. 1.526 of 1 July 2022, supplemented by Sovereign Order no. 10.300 of 22 December 2023.

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SUMMARY

¤ With regard to the author's right to an intellectual work (defined irrespective of the type of work - literary, artistic, scientific, educational or other - as "any original creation intended and conceived by its author provided that it is expressed by its creation, even if unfinished, even if it has not been disclosed"), the bill describes it as a property right, the attributes of which it then sets out.

¤ The draft text also guarantees protection of the title of an intellectual work (even if the work is no longer protected) where its use may give rise to a likelihood of confusion. The proposed provision grants broader protection than that provided for in Article L. 112-4 of the French Intellectual Property Code, which sets as an additional condition for protection that the title be used to identify a work of the same genre.

¤ It also distinguishes intellectual property rights (intangible) attached to the work from property rights (tangible) in the material support of the work (protected by article 438 of the Civil Code, which states that "Property is the right to enjoy and dispose of things in the most absolute manner, provided that one does not use them in a manner prohibited by laws or regulations").

¤ The law also enshrines the legal existence of neighbouring rights, which aim to protect the artistic or financial contribution invested in creation. The aim is "to guarantee performers the ability to profit from their performances and to ensure that phonogram and videogram producers and audiovisual communication companies receive a fair return on their investment" (Explanatory Memorandum to Bill 1045, p. 5).

¤ With regard to the way in which copyright and related rights are exploited, the text would govern not only their individual management by contract, but also their collective management by authors' societies (called ‘Organismes de gestion et de répartition des droits’, which issue authorisations for the exploitation of rights and collect and distribute the remuneration due). It would make the activities of foreign authors' societies in Monaco subject to prior administrative authorisation. They would also have to be represented in Monaco by a duly authorised natural or legal person.

¤ The bill also envisages the creation of an Association responsible for contributing to the cultural influence of the Principality (which authors' societies based abroad could appoint to represent them in Monaco), to which any collective rights management organisation authorised in Monaco would have to allocate part of the remuneration earned in Monaco. The latter would naturally be accountable for the use of the funds (accounting control and annual report to the Minister of State).

¤ The Commission for Copyright and Neighbouring Rights ("Commission des droits d’auteur et des droits voisins"), which would be set up under the Minister of State, would in particular be responsible for examining applications for approval and authorisation of the activities of rights management and distribution bodies, and for monitoring the activities of the Association responsible for contributing to the Principality's cultural influence.

¤ The bill also governs the communication to the public of a work or programme by satellite or cable retransmission.

¤ Lastly, the existing system of sanctions would be supplemented (seizure of infringement directly inspired by Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights).

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Outline of Bill no. 1045

— Copyright ("droits d'auteur") (Book I): moral rights (transmission; disclosure of the work; owner of the object which constitutes the material support of the work), exploitation rights (author's right; public institutions or institutions entrusted with a mission of general interest; reproduction; representation by communication to the public; production in performance of an employment contract; production in the capacity of civil servant or agent of the State ; right of disclosure; case of software; transfer of an original handwritten, graphic or plastic work and right of access to it, resale right; rights after the death of the author; exceptions to the exercise of copyright), methods of exploiting the work (exploitation contracts, publishing contract, performance contract, audiovisual production contract, commission contract for advertising purposes).

— Related rights ("droits voisins") (Book II): moral rights (over the performance), economic rights (fixation of the performance by means of a phonogram or videogram; reproduction and communication to the public; contract entered into by a performer and a producer with a view to the production of an audiovisual work; transfer of rights over the performance; remuneration of the performer); phonogram published for commercial purposes; reproduction or making available to the public by sale, exchange, rental or communication to the public of the videogram; duration of the economic rights of performers, phonogram producers, videogram producers and audiovisual communication companies).

— Communication to the public by satellite and retransmission of programmes (Book III)

— Rights management and distribution bodies (Book IV)

— Copyright and Related Rights Commission (Book V)

— Penalties (Book VI)

— Final provisions (Book VII).

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Principal international instruments to which the Principality of Monaco is a party:

• Universal Copyright Convention and Protocols signed at Geneva on 6 September 1952 (Sovereign Order no. 1.191 of 12 September 1955)
• Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, as revised at Paris on 24 July 1971 (Sovereign Order no. 5.501 of 9 January 1975)
• Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, done at Rome on 26 October 1961 (Sovereign Order no. 8.488 of 26th December 1985).

Related European Uunion legislation:

• Council Directive 91/250 of 14 May 1991 on the legal protection of computer programs and Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs
• Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art
• Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version)
  
• Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society
• Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version)
• Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (Consolidated text)
• Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (Consolidated text)

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