Software Copyright in France

Software Copyright in France

French law protects computer software as a œuvre de l’esprit (work of the mind) under the Code de la propriété intellectuelle (CPI), affording it copyright protection while adapting traditional author’s rights principles to the specific characteristics of software. The protection of software by copyright was introduced by the LOI n° 94-361 du 10 mai 1994 (Law No. 94-361), which amended the CPI to implement the EU Software Directive (Directive 91/250/EEC, now Directive 2009/24/EC). French law provides a sui generis regime within the copyright framework, with specific rules adapted to the functional nature of software.

Software as a Work: Article L112-2

Article L112-2 of the CPI expressly includes computer software (logiciels) among the protected works, including the preparatory design material. Software is protected if it is original — that is, if it reflects the intellectual contribution of its author. The Cour de cassation has held that the originality requirement for software is met where the author has made creative choices that are not dictated by technical constraints or purely functional considerations. This standard is applied strictly: many routine or purely functional programs have been denied protection.

The protection extends to the software in both source code and object code forms, and includes the preparatory design material, the structure of the program, and the user interface (where original). Protection does not extend to ideas, principles, algorithms, or programming languages underlying the software. The CPI specifically excludes ideas and principles from protection, maintaining the idea-expression dichotomy fundamental to copyright law.

Employee Authorship

French law applies a special regime for software created by employees. Article L113-9 of the CPI provides that, unless otherwise agreed by contract, the economic rights in software created by an employee in the execution of their employment duties are transferred to the employer. The employer is entitled to exercise the software’s economic rights without the employee’s separate consent. However, the employee retains the droit moral (moral rights), including the right of paternity (to be named as author) and the right to respect for the integrity of the work.

The Cour de cassation has strictly interpreted the employee authorship regime. The software must have been created in the exercise of the employee’s duties — that is, within the scope of the employment contract and under the employer’s direction. Software created outside working hours or without using the employer’s resources may not benefit from the automatic transfer. For commissioned software (created by independent contractors), the economic rights remain with the author unless expressly assigned by contract.

Protection Against Decompilation

The CPI grants software authors the exclusive right to reproduce, adapt, translate, and distribute the software. The reproduction of software in any form, including permanent or temporary reproduction, is subject to the author’s authorisation. The decompilation of software — the translation of object code into source code — is generally prohibited without the author’s consent.

Article L122-6-1 of the CPI provides a limited exception: decompilation is permitted where it is indispensable to obtain the information necessary to achieve the interoperability of an independently created program with other programs, provided that the information is not otherwise available. The exception is subject to strict conditions: the decompilation may be performed only by the lawful user or their representative; it must be limited to the parts of the original program necessary for interoperability; and the information obtained may not be used for other purposes, including the development of a substantially similar program or for any act infringing copyright.

The LOI n° 94-361 du 10 mai 1994

The loi du 10 mai 1994 transposed the EU Software Directive into French law, significantly reforming the protection of software. The law amended the CPI to create a distinct regime for software, deviating from the general author’s rights framework. It limited the moral rights of the software author: the right of disclosure (droit de divulgation) and the right of withdrawal (droit de retrait) do not apply to software (Article L121-7). The right of paternity and the right of integrity remain, though the right of integrity is limited to respect for the software’s structure and intended purpose.

The 1994 law also introduced the special rules on employee authorship, decompilation exceptions, and the measures for protecting software against piracy. It aligned French law with the EU framework while preserving certain distinctive French features, particularly the recognition of moral rights for software authors.

Open Source Contracts

French law recognises and enforces open source software licences. The Cour de cassation has held that open source licences, including the GNU General Public Licence (GPL), are valid contracts under French law. In the affaire Educaffix (Cass. com., 31 March 2015), the court upheld the enforceability of the GPL and confirmed that a party distributing open source software must comply with the licence terms, including the obligation to distribute source code and the prohibition on imposing additional restrictions.

French courts have applied the general principles of contract law to open source licences, including the requirement of consent, the interpretation of licence terms, and the remedies for breach. The Cour de cassation has held that the distribution of software under an open source licence constitutes a mise à disposition (making available) that triggers the obligations of the licensee. French law’s protection of moral rights may also affect open source licensing: the author’s right of paternity requires attribution, and the right of integrity may restrict modifications that distort the software.

Patentability of Software

Software is not patentable as such under French law. Article L611-10 of the CPI provides that computer programs are not considered inventions for the purposes of patent law, following Article 52(2) of the European Patent Convention. However, software may be patented if it produces a technical effect beyond the normal interactions between software and hardware — for example, software that controls a technical process, improves computer functionality, or provides a technical solution to a technical problem. The Institut National de la Propriété Industrielle (INPI) and the European Patent Office apply the technical contribution test, which has been the subject of extensive jurisprudence.