Posthumous work in intellectual property law

Article

May 20, 2022

A posthumous work is a work disclosed after the death of its author.

France

Article 23 of the law of March 11, 1957 associated posthumous works with an exclusive right of exploitation for a period of 50 years, granted to the author's heirs during the 50 years following the year of death, and to the owner of the work beyond this period. In 1985, the duration of the right to exploit such works was extended to 70 years, whether they are musical compositions with or without words. In 1992, during the codification creating the legislative part of the intellectual property code, this article took the name of “L. 123-4”. In 1997, the duration of the right of exploitation was reduced to 25 years in the event that the disclosure takes place after the 70 years following the year of death, as a consequence of the transposition of article 4 of the European Directive/93 /98/EEC of October 29, 1993, relating to the harmonization of the term of protection of copyright and certain neighboring rights. However, Article 10 of the same directive provides that "when a term of protection longer than the corresponding term of protection provided for in this directive has already started to run in a Member State on the date referred to in Article 13 paragraph 1, this Directive does not have the effect of shortening it in that Member State”. The owner of a copy of the posthumous work, as opposed to the owner of the original of the work, does not have such a right, when the copy has been transmitted "without the intention of transmitting the right of exploitation virtually attached to the ownership of the original material carriers”.

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