Liste de questions concernant les moyens de faire respecter les droits au titre de l'article 63:2 de l'Accord sur les ADPIC ‒ Afficher les détails du document

France

a) Procédures et mesures correctives judiciaires civiles

Jurisdiction ratione materiae in the first instance: With regard to marks, Article L. 716.3 of the CPI provides that "Civil proceedings relating to marks shall be heard by the First Instance Courts as also any proceedings involving both a matter of marks and a related matter of industrial designs or unfair competition." As far as geographical indications and designations of origin are concerned, Article L. 115-10 of the Consumer Code states the following: "Legal action shall be brought before the First Instance Court in the place of origin of the designation contested ...". Article L. 115-9 of the aforementioned Code specifies that "The court hearing a case brought pursuant to Article L. 115-8 may take action to prohibit the use of any indication that might create confusion regarding the origin of the product on any products not entitled to the designation of origin or on their packaging and labels". The provisions of the Consumer Code on civil proceedings do not apply to agricultural products or foodstuffs that have been given exclusive use of a registered designation of origin. (Article L. 115-5 of the Consumer Code). Criminal courts have jurisdiction. There are no special provisions on jurisdiction for industrial designs and the general rules on assignment of cases apply. Usually, First Instance Courts have jurisdiction; Article R. 321-1 of the Code of Organization of Justice, however, provides that "In civil proceedings, a Court of First Instance has jurisdiction over all action to enforce a right in personam or action related to moveable assets up to the amount of F 13,000 and on appeal up to the amount of F 30,000". Commercial courts may also have jurisdiction if the two parties are traders. Regarding patents, Article L. 615-17 of the CPI states that "All litigation under this Title shall fall within the jurisdiction of the First Instance Courts and of the relevant Court of Appeal ...". Article R. 631-1 of the CPI refers back to Article R. 312-2 of the Code of Organization of Justice and establishes the list of First Instance Courts that have jurisdiction (numbering 10). In addition, Article L. 615-19 of the CPI provides that: "Proceedings for infringement of patents shall be heard exclusively by the First Instance Court." It then states that "All proceedings involving infringement of a patent and a related act of unfair competition shall be heard exclusively by the First Instance Court". With regard to new plant variety certificates, the first paragraph of Article L. 623-31 of the CPI states that litigation concerning the protection of rights granted by the certificate shall be heard by the First Instance Courts and the corresponding Courts of Appeal. For layout designs, Article L. 622-7 of the CPI refers to Article L. 615-17 on patents. Regarding trade secrets, the injured party may bring an action for unfair competition before the First Instance Courts in most cases, and before the commercial courts when the two parties are traders. If the disclosure has been made by a person previously or currently employed by the company suffering the injury, the case may be brought before an industrial tribunal (Article L. 152-7 of the Labour Code, repeated in Article L. 621-1 of the CPI).

The owners2 of intellectual property rights have standing to assert their rights before the courts. The word "owner" includes successors in title (i.e., heirs or assignees) of the authors or applicants for IP rights. In relation to marks, Article L. 716-5 of the CPI provides that "Civil infringement proceedings shall be instituted by the owner of the mark. However, the beneficiary of an exclusive right of exploitation may institute infringement proceedings, unless otherwise laid down in the contract, if, after formal notice, the owner does not exercise such right". In the case of geographical indications and designations of origin, Article L. 115-8 of the Consumer Code refers to "any person who claims that use of a designation of origin is directly or indirectly prejudicial to him and violates his rights ... The same action may be brought by trade unions or associations that have been regularly constituted for at least six months, in relation to rights it is their duty to defend ... ". Article L. 115-12 of the Code states that "any person, trade union or association meeting the duration and interest requirements set out in Article L. 115-8 may join in the proceedings". Article L. 421-1 of the Consumer Code states that "Legally established associations whose specific statutory objective is to protect the interests of consumers may, if they are approved for this purpose, exercise the recognized rights of the civil party in respect of acts that directly or indirectly prejudice the collective interests of consumers ... ". Pursuant to Article L. 421-7 of the Code "The associations referred to in Article L. 421-1 may participate in proceedings before the civil courts ... where the purpose of the initial demand is to compensate for prejudice suffered by one or more consumers due to acts that do not constitute a criminal offence". The owner of the right is the only person entitled to assert industrial design rights before the courts. An exclusive licensee is not entitled to do so. With regard to patents, Article L. 615-2 of CPI provides that "Infringement proceedings shall be instituted by the owner of the patent. However, the beneficiary of an exclusive right of working may, except as otherwise stipulated in the licensing contract, institute infringement proceedings if, after notice, the owner of the patent does not institute such proceedings." The same applies to owners of licences, compulsory licences or ex officio licences. For both marks and patents, the exclusive licence must have been registered in the National Register of Marks, or the National Patent Register. In the case of new plant variety certificates, Article L. 623-25 of the CPI gives the owner of a certificate the right to institute civil liability proceedings and gives the same right to the beneficiaries of exclusive rights of exploitation or holders of ex officio licences if, after formal notification, the owner of the certificate fails to exercise this right. "The owner of the certificate shall be entitled to take part in proceedings brought by his licensee" and vice versa. For this purpose, the exclusive licence must have been registered in the National Register of New Plant Variety Certificates. There is no special provision on civil or criminal action related to layout designs. Under general law, the creators and their successors in title are entitled to assert their rights, whereas licensees may not do so. With regard to trade secrets, an action for unfair competition (based in tort: Articles 1382 and 1383 of the Civil Code) may be brought by the professional suffering injury. If the acts injure a number of traders or industrialists or a particular profession, professional associations may bring proceedings to compensate the material or moral injury suffered by their members (Versailles Appeal Court, 13th Chamber, 4 November 1993). How may they be represented? They must necessarily be represented by an attorney (avocat) if the dispute comes before a First Instance Court (pursuant to Article 751 of the New Code of Civil Procedure), so this applies to all litigation concerning marks, geographical indications and designations of origin, patents, new plant varieties and layout designs. On the other hand, if a dispute concerning industrial designs comes before a lower court (although in practice this is extremely rare) or a commercial court, an attorney is not required. This also applies to litigation concerning the disclosure of trade secrets brought before commercial courts or industrial tribunals. Are there requirements for mandatory personal appearances before the court by the right holder? The general rules of law in this respect are governed by Chapter III of the New Code of Civil Procedure (NCPC). Article 184 thereof provides that "The judge may, in all matters, order the parties or one of them, to appear in person". The following Articles (up to Article 198) complete this provision.

The relevant general rules of law apply. Article 11 of the NCPC (which appears in Book I: provisions common to all courts) states that: "The parties are bound to cooperate in the investigation, leaving to the judge to draw any conclusions in the event of an abstention or refusal. If one party withholds an item of evidence, the judge may, at the request of the other party, require him to produce it under penalty of a fine, if need be. He may, at the request of one of the parties, demand or order, under the same penalty, the production of all documents in the possession of third parties where there is no lawful impediment." The first subtitle under Title VII (the judicial administration of the means of proof) in the NCPC concerns the evidence (exchange of documents between the parties and obtaining documents held by a third party). Article 132 of the NCPC states that "The party who relies on a document must make it available to every other party to the proceedings. The making available of the documents must be spontaneous." Articles 133 to 142 give further details on this aspect. For example, the judge may order a party to communicate the documents on pain of a fine. Article 143 of the NCPC states that "The facts upon which the resolution of the suit depends, may, at the request of the parties or sua sponte, be the subject of any order of investigation legally admissible.". Pursuant to the subsequent Article, an investigation order may be rendered whenever the judge lacks sufficient basis to make a ruling. Lastly, Article 145 provides that: "If there is a legitimate reason to preserve or to establish, before any proceedings, the means of proving facts upon which the resolution of a suit might depend, orders of investigation legally permissable may be rendered at the request of any interested party, by petition or by an interim order." In relation to geographical indications and designations of origin, Article L. 421-8 of the Consumer Code provides that "Notwithstanding legislative provisions to the contrary, the prosecuting authorities may present to the court hearing the case any records or reports of an inquiry in their possession whose communication would help to resolve the dispute". Moreover, for intellectual property there is a special procedure for administration of the means of proof, namely, infringement seizure. The President of the First Instance Court authorizes such a procedure through an ex parte order, which may be issued inaudita altera parte, in accordance with Article 493 of the NCPC, which defines the nature of an ex parte order: see reply to question 11. Seizure of the infringing goods consists either of actual seizure of copies (only in relation to copyright and related rights: Articles L. 332-1 and L. 332-3 of the CPI), or descriptive seizure (in the case of software: Article L. 332-4 of the CPI; industrial designs: Article L. 521-1 of the CPI; marks: Article L. 716-7 of the CPI; patents: Article L. 615-5 of the CPI; and new plant varieties: Article L. 623-27 of the CPI), or a combination of the two (the aforementioned Articles for software, industrial designs, marks, patents, and new plant variety certificates respectively). For industrial designs, descriptive seizure becomes null and void if no proceedings are instituted or a summons issued within 2 weeks of the seizure. Nullity because of failure to institute proceedings within 2 weeks does not apply to descriptive seizure related to marks or patents. For industrial designs, marks and patents, actual seizure becomes null and void if no proceedings are instituted within 2 weeks. The President of the First Instance Court may authorize seizure subject to prior deposit of security by the plaintiff and unfounded seizure may give rise to damages in favour of the defendant.

French law does not contain any special provisions on protecting the confidentiality of information provided in judicial proceedings concerning IPRs. The NCPC's general provisions allow either the judge in chambers or the judge directing the preparation of the trial (whose powers are broader and who acts when investigation is required before sending the case to trial) to take the measures requested by the parties in this respect. Article 435 of the NCPC allows a judge to decide that, under certain circumstances, the hearings should be held or should continue in chambers. If a patent is worked by the State or one of its co-contractors for the purposes of national defence, civil proceedings take place in the chambers of the First Instance Court (Article L. 615-10 of the CPI), i.e., the hearings are not public (Article 22 of the NCPC states that "Hearings are public, except where the law requires or permits them to take place in chambers.").

- Injunctions The purpose of remedies or civil penalties is to end the infringement and compensate for the prejudice caused. The judge must first of all prohibit any continuance of the infringing acts. Prohibition, which is not included in the list of remedies in the questionnaire, is nevertheless the first possible penalty. Judges may add injunctions to the prohibition measures in order to ensure that their decisions are carried out. Fines, which are a special form of injunction, are much more commonly used as a provisional measure3 or for the purpose of terminating acts of unfair competition. There are no special provisions on IPRs. Consequently, the general rules of law on injunctions apply (Chapter I of Title IV of the NCPC deals with injunction procedures, in particular, mandatory injunctions in Articles 1425-1 to 1425-9). Article 1425-4, in particular, states that: "Where the judge considers that, on the basis of the documents produced, there are grounds for the demand, he issues an order of mandatory injunction that is not subject to appeal. He defines the purpose of the obligation and the time-limit and conditions within which it must be carried out. Moreover, the order specifies the place, date and time of the hearing at which the case will be considered, unless the plaintiff states that the injunction order has been carried out." According to Article 1425-7 of the NCPC "Where the enjoinment order has been carried out within the time-limit fixed, the plaintiff informs the clerk of the court accordingly. The case is then withdrawn. In the absence of such information and if the plaintiff is not present at the hearing without justifying his absence, the court declares the mandatory injunction to be null and void ...". As far as geographical indications and designations of origin are concerned, Article 421-3 of the Consumer Code allows a criminal court hearing a case brought by a consumers' association, after having declared the defendant guilty "to postpone sentencing and to call on the person convicted, on pain of a fine if need be, to comply with the terms established by the court for the purpose of terminating the unlawful action, within the time-limit fixed ...". -Damages, including recovery of profits, and expenses, including attorney's fees There is no provision specific to IPRs. Compensation for the prejudice caused by infringing IPRs is dealt with according to the rules on civil liability laid down in Articles 1382 and 1383 of the Civil Code. The philosophy and case law both confirm that the indemnity must compensate for the prejudice suffered, but only the prejudice suffered and not profits unlawfully earned. As legal precedents show, evaluating the indemnity comprises two elements: determination of the volume of infringement, and an estimate of the injury caused. The judge weighing the merits of the case is solely responsible for making this assessment. Title XVIII of the NCPC (Articles 695 to 725-1) concerns costs. In general, the losing party must pay costs, unless the judge decides otherwise. In the absence of any special regulation to the contrary, payment of legal officials (lawyers, bailiffs ...) is not included in the costs. According to Article 700 of the NCPC, however, "When it appears inequitable to leave on one party the burden of the ‘sums spent by the latter’ and not included in the costs, the judge may order the other party to pay the first one a sum which the judge determines." He may, even ex officio, for reasons based on the same considerations, decide that this sentence is not warranted. -Destruction or other disposal of infringing goods and materials/implements for their production Case law in the Court of Cassation (First Civil Chamber, 3 November 1988, No. 86-16.538) reaffirms that a confiscation measure "can only be ordered in the cases prescribed by the law". With regard to patents, Article L. 615-7 of the CPI, included in section 1 on civil proceedings, states that "At the request of the injured party, and where such measure is necessary to prevent continuing infringement, the Court may order confiscation, in favour of the petitioner, of the articles recognized as constituting an infringement, which are the property of the infringer, on the date of entry into force of the prohibition and, where appropriate, of the devices or means specifically intended for committing the infringement. The value of the articles confiscated shall be taken into account when computing the compensation to be awarded to the beneficiary of the decision." In relation to new plant variety certificates, Article L. 623-28 of the CPI provides that "At the request of the injured party, the Court may order confiscation on behalf of the injured party of any plants or parts of plants or of any elements of reproduction or vegetative propagation obtained in violation of the rights of the owner of a new plant variety certificate and, where appropriate, of the instruments specifically intended for use in the reproductive cycle". For industrial designs (Articles L. 521-3 and L. 521-3-1 of the CPI) and marks (Articles L. 716 8-1 and L. 716-14 of the CPI), these measures constitute criminal penalties. It would appear, however, that Civil Courts are sometimes allowed to order such measures when they relate to industrial designs in particular. -Any other remedies Publication of sentences may be ordered according to ordinary procedural rules. The decision is published in a newspaper with broad circulation or in the professional press. Publication costs are borne by the infringer. In the case of geographical indications and designations of origin, Article L. 421-9 of the Consumer Code states that "The competent court may order that the verdict pronounced should be disseminated to the public by all appropriate means ... . The cost of dissemination shall be borne by the losing party, the party convicted or the association that instituted the civil action if the proceedings they instituted have been dismissed."

Such a measure, taken in the form of an injunction, would be contrary to the principle of presumption of innocence and the right to remain silent, which are recognized in criminal law in France. At the European level, two decisions, one by the European Court of Human Rights (Funcke vs. France, 25 February 1993), and the other by the Court of Justice of the European Communities (Orkem case, 18 October 1989) confirm that an investigation measure cannot require self-incrimination by an accused person in relation to facts that still have to be proved.

As far as industrial designs, new plant variety certificates or layout designs are concerned, there are no special provisions. The general rules of law apply (see reply to question 5). It is nevertheless provided that the President of the Court of First Instance who orders the infringement seizure may "order the person requesting seizure to provide adequate security" (Article L. 332-1 of the CPI) or "require from the petitioner security ... ". (Article L. 521-1 of the CPI) in order to compensate a defendant wrongfully enjoined. For new plant variety certificates, the last paragraph of Article L. 623-27 of the CPI provides for the payment of "any damages which may be claimed". With regard to marks and patents, the last paragraphs of Articles L. 716-6 and L. 615-3 of the CPI contain similar provisions to the effect that "The judge may condition the injunction on the furnishing by the plaintiff of a guarantee to cover possible indemnification of damages suffered by the defendant if the infringement proceedings are subsequently judged to be unfounded." In general, the NCPC makes dilatory or abusive action in the Court of First Instance or on appeal punishable by a civil fine of F 100 to F 10,000, without prejudice to any damages that may be claimed (Articles 32-1 and 559 of the NCPC). -To what extent are public authorities and/or officials liable in such a situation and what "remedial measures" are applicable to them? In the case of industrial designs, Article L. 521-1 of the CPI states that " ... any bailiff carry[ing] out a detailed description, with or without seizure, of the incriminated articles or instruments, under an order issued by the President of the First Instance Court" shall give a copy both of the order and of the instrument recording deposit to the holders of the articles described on pain of nullity and damages awarded against the bailiff. The injured petitioner may claim these damages if the bailiff does not respect the procedural rules. Regarding patents, the second paragraph of Article L. 615-10 of the CPI states that "Where the President of the Court orders an expert opinion or a description with or without effective seizure, as provided for in Article L. 615-5, the appointed law officer shall refrain from proceeding with seizure, description and any investigation into the archives and documents of the business if the contract for research or manufacture comprises a defence security classification." A similar provision in Article L. 623-30 of the CPI applies to new plant varieties (except that the word "manufacture" is replaced by the words "reproduction or propagation"). These examples do not relate directly to the question (they concern descriptive seizure and not injunctions), but they show that public officials may be held liable. There are no special remedial measures applicable to public officials in cases where infringement proceedings are dismissed. Public officials act upon orders issued by the competent courts and if they are collecting evidence they could probably only be held liable in exceptional cases of misconduct (either personally or when carrying out their tasks, according to well-established administrative precedents). The judicial authorities cannot be liable unless they refuse to grant justice or commit serious misconduct. Where the substance of a decision taken is contested, the authority of res judicata nullifies any liability (but opens the door to appeals).

There are no special provisions on the cost and duration of proceedings. The duration depends on the complexity of the case, the efforts of the parties and the court's workload. The channels of appeal used by the parties (appeal, cassation) also have a significant impact on the overall length of proceedings. The cost of proceedings includes legal costs, mainly allowances paid to witnesses, payment of technicians, salaries of prosecuting officials and attorneys' fees. The cost therefore varies greatly according to whether or not technical expertise is required and the amount of the fee paid by the client to his attorney. The court may order the losing party to pay the attorney's fee up to the amount it fixes. Consequently, it is not possible to give details concerning the effective duration and cost of proceedings in this area.

b) Procédures et mesures correctives administratives

There is no provision in the Code allowing the administration to implement procedures relating to the merits of the case or to impose administrative penalties.

a) Mesures judiciaires

In relation to copyright: In the context of an infringement seizure procedure, the first paragraph of Article L. 332-1 of the CPI allows police commissioners to seize "... copies constituting an unlawful reproduction of the work". The second paragraph of this Article also states that: "If seizure will have the effect of retarding or suspending public performances which are in progress or which have already been announced, a special authorization must be obtained from the President of the First Instance Court, by an order issued on demand. The President of the First Instance Court may also order, in the same form: 1.Suspension of all manufacture in progress serving the unlawful reproduction of a work; 2.seizure, whatever the day or time, of the copies constituting an unlawful reproduction of a work, whether already manufactured or in the process of manufacture, of the receipts obtained and of copies unlawfully used; 3.seizure of receipts from any reproduction, performance or dissemination, by any means whatsoever, of a work of the mind, carried out in violation of the author's rights." In relation to software: The first paragraph of Article L. 332-4 of the CPI provides that infringement seizure "... shall be carried out under an order issued on request by the President of the First Instance Court. The President shall authorize distraint where appropriate". In connection with related rights: Article L. 335-1 of the CPI provides that "As soon as offences under Article L. 335-4 ... have been established, the competent police officers may effect seizure of the unlawfully reproduced phonograms and videograms, of the copies and articles manufactured or imported unlawfully and of the equipment specially installed for the purpose of such acts." In the case of an ordinary law action in chambers, the judge sitting in chambers is competent to order any preventive measures necessary in order to prevent imminent injury that may be caused to the author.

The only exception to the adversarial principle as far as literary and artistic property is concerned relates to infringement seizure procedure. All the measures provided in Articles L. 332.1 and L. 332.4 of the CPI can therefore be taken inaudita altera parte (see Article 493 of the NCPC, which provides that an ex parte order is an interim decision taken inaudita altera parte).

Procedures for initiating action In relation to copyright: In an infringement seizure procedure, Article L. 332.1 of the CPI provides that copies constituting an unlawful reproduction of the work may be seized "at the request of an author of a work ... or his successors in title" addressed to the police commissioner or the courts in places where there are no police commissioners. Special authorization by the President of the First Instance Court, through an order issued on demand, must be obtained in the other cases referred to in this Article and for the effective seizure of software (see reply to question 10). As far as related rights are concerned, the law does not provide for any infringement seizure procedure, therefore, the general rules of law apply. Article L. 335.1 of the CPI, however, allows the owners of related rights, through police officers, to effect seizure of phonograms and videograms unlawfully reproduced or imported, as well as the equipment used to reproduce them. Time-limits for maintaining provisional measures in force For copyright: In relation to infringement seizure procedure, Article L. 332.3 of the CPI provides that "If the distrainer fails to submit the matter to the competent court within 30 days of seizure, the lifting of the seizure may be ordered by the President of the First Instance Court, acting in chambers." In the case of software, Article L. 332-4 provides that infringement seizure shall be null and void failing a writ of summons within 2 weeks of the seizure. For related rights, no special time-limit for maintaining provisional measures in force is provided in the CPI. Safeguards to protect the legitimate interests of the defendant For copyright, the third paragraph of Article L. 332.1 of the CPI provides that in an infringement seizure procedure, "When issuing the orders referred to above [cf. the cases mentioned in the reply to question 10], the President of the First Instance Court may order the person requesting seizure to provide prior adequate security." The first paragraph of Article L. 332-2 of the CPI gives the distrainee or the garnishee the possibility of requesting the President of the First Instance Court, within 30 days of the report of seizure or of the date of the order referred to in Article L. 332-1, "... to order the lifting of the seizure or to limit its effect or again to authorize resumption of manufacture or of the public performances, under the authority of an administrator appointed as receiver, to hold the proceeds from such manufacture or performance on behalf of the person to whom the work belongs". If he allows the request of the distrainee or garnishee, the President of the First Instance Court, acting in chambers, may order the petitioner to deposit a sum as a guarantee for any damages to which the author might be entitled (second paragraph of Article L. 332.2 of the CPI).

See reply to Part I question 8.

[Answer 8: There are no special provisions on the cost and duration of proceedings. The duration depends on the complexity of the case, the efforts of the parties and the court's workload. The channels of appeal used by the parties (appeal, cassation) also have a significant impact on the overall length of proceedings. The cost of proceedings includes legal costs, mainly allowances paid to witnesses, payment of technicians, salaries of prosecuting officials and attorneys' fees. The cost therefore varies greatly according to whether or not technical expertise is required and the amount of the fee paid by the client to his attorney. The court may order the losing party to pay the attorney's fee up to the amount it fixes. Consequently, it is not possible to give details concerning the effective duration and cost of proceedings in this area.]

b) Mesures administratives

Administrative bodies are not empowered to order provisional measures in relation to infringement of copyright or related rights. Nevertheless, Article L. 331.2 of the CPI on reports on infringement provides that proof of the existence of "... any infringement of the provisions of Books I, II and III ... may be provided by the statement of a sworn agent designated, as appropriate, by the National Centre for Cinematography, by the professional bodies of authors or by the societies [for the collection and distribution of authors' royalties]. Such agents shall be approved by the Minister responsible for culture ...".

Pursuant to Article L. 335-10 of the CPI, the customs administration may, at the written request of an owner of copyright or a neighbouring right, withhold in the course of its inspections goods alleged by him to be infringing that right. The exhaustion of rights within the European Union invalidates the application of measures to suspend marketing provided that the goods for which the request has been made are not infringing goods or have been offered for sale on the Community market with the consent of the owner of the rights.

Competent authority: the customs administration, more specifically the Direction Nationale du Renseignement et des Enquêtes Douanières (DRNED) (National Directorate of Customs Information and Enquiries). Requirements for an application: written application by the owner of copyright or a related right, accompanied by proof of his right and a description of the goods allegedly infringing that right (Article L. 335.10 of the CPI). Article R. 335.1 of the CPI fixes the procedures for the request and states that it "may be made prior to the import of the allegedly infringing goods into France. In which case, it is valid for one year and may be renewed". Requirements relating to the duration of suspension: Article L. 335.10 of the CPI prescribes that the withholding measure requested by the owner of a copyright or a related right ... "shall be lifted as of right where the plaintiff fails, within 10 working days following notification of the withholding of the goods, to prove to the customs services: -Either that precautionary measures under Article L. 332-1 have been taken; -or that he has instituted proceedings before the civil court or the court of misdemeanours and has provided the necessary guarantees to cover his liability in the event of the infringement claim being eventually considered unfounded." Right of inspection and information: in the case of literary and artistic property, the last paragraph of Article L. 335.10 of the CPI provides that "For the purpose of the institution of the legal proceedings referred to in the foregoing paragraph, the plaintiff may require the customs administration to communicate the names and addresses of the sender, the importer and the consignee of the goods withheld, or of the holder thereof, and also the quantity thereof, notwithstanding the provisions of Article 59 bis of the Customs Code concerning the professional secrecy to which officials of the customs administration are bound."

In the absence of special provisions in the CPI on copyright and related rights, the general rules of law apply.

See reply to question 17 above.

[Answer 17: In the absence of special provisions in the CPI on copyright and related rights, the general rules of law apply.]

See reply to question 17 above.

[Answer 17: In the absence of special provisions in the CPI on copyright and related rights, the general rules of law apply.]

In the case of literary and artistic property, Article L. 331.1 of the CPI allows the injured party "to institute criminal proceedings under the general rules of law", i.e. before a magistrate's court in the first instance.

The provisions on literary and artistic property are to be found in Articles L. 335.1 to L. 335.9 of the CPI and Articles 323.1 to 323.7, 410.1 and 411.6 to 411.8 of the new Code of Criminal Procedure. For copyright: the first paragraph of Article L. 335.2 of the CPI provides that "Any edition of writings, musical compositions, drawings, paintings or other printed or engraved production made in whole or in part contrary to the laws and regulations relating to the property of authors shall constitute an infringement." "The sale, exportation and importation of infringing works" also constitute infringement (third paragraph of Article L. 335.2 of the CPI). Pursuant to Article L. 335.3 of the CPI "Any reproduction, performance or dissemination of a work of the mind, by any means whatsoever, in violation of the author's rights as defined and regulated by law shall also constitute an infringement. The violation of any of the rights of an author of software as defined in Article L. 122-6 shall also constitute an infringement." For related rights: Article L. 335.4 of the CPI states that the following are offences: "Any fixation, reproduction, communication or making available to the public, on payment or free of charge, or any telediffusion of a performance, a phonogram, a videogram, or a program made without authorization, where such is required, of the performer, the phonogram or videogram producer or the audiovisual communication enterprise ...". This Article also imposes penalties for "Any importation or exportation of phonograms or videograms made without the authorization of the producer or the performer, where such is required ..." (second paragraph of Article L. 335-4), and "Failure to pay the remuneration due to the author, the performer or the phonogram or videogram producer in respect of private copying or public communication or of the telediffusion of phonograms ..." (third paragraph of Article L. 335.4). Other relevant texts are Article 79-1 of Law No. 86-1067 of 30 September 1986 on freedom of communication, implemented by Law No. 92-1336 of 16 December 1992 on penalties for unlawfully receiving broadcast programmes defined in the following terms: "the manufacture, importation for sale or rental, offering for sale, possessing with a view to selling, or the installation of equipment, materials, devices or instruments wholly or partly designed for the unlawful receiving of broadcast programmes when these programmes are restricted to a specified audience that has access to them subject to remuneration paid to the person operating the service". Articles 323.1 to 7 of the new Criminal Code punish infringement of "automatic data processing systems". The offences covered by these Articles are "the fact of unlawfully accessing or remaining in all or part of an automatic data processing system, the fact of hindering or altering the operation of such a system or the fact of unlawfully entering data into such a system or unlawfully modifying or deleting the data contained therein". According to Article 323.7 "attempts to carry out the offences specified in Articles 323.1 to 323.3 shall be subject to the same penalties". Lastly, Article 410 of the NCP includes the essential elements of France's cultural heritage among the country's fundamental interests. Violations of these interests in the form of furnishing objects, documents, computer data ... to a foreign power incurs the criminal penalties laid down in Articles 411.6 to 8 of the NCP.

The only administrative authorities empowered to initiate criminal proceedings are the DGCCRF and the DGDDI mentioned above (in connection with the procedure explained in reply to question 14 and on the basis of Article 343-2 of the Customs Code). Under certain circumstances, but only in connection with marks, they may do so on their own initiative. The public prosecutor initiates criminal proceedings if he considers them to be warranted. Criminal proceedings concerning designations of origin or geographical indications are regularly initiated by the National Institute of Designations of Origin, which is a public institution of an administrative nature responsible for controlling, promoting and protecting designations of origin, the wine market and the economic regime governing alcohol, under the supervision of the Ministry of Agriculture.5

Pursuant to the general rules of law, owners of rights and their successors in title may initiate criminal proceedings. In addition, the second paragraph of Article L. 321-1 of the CPI allows duly established societies for the collection and distribution of authors' royalties and related rights to take legal action to defend the rights for which they are responsible under their statutes. The same applies to professional associations (second paragraph of Article L. 331.1 of the CPI).

In the case of literary and artistic property rights: -Imprisonment Article L. 335.2 of the CPI makes "Infringement in France of works published in France or abroad" and "The sale, exportation and importation of infringing works" punishable by a two-year prison term and the fine specified below. Article 335.4 of the CPI imposes the same penalties for "Any fixation, reproduction, communication or making available to the public, on payment or free of charge, or any telediffusion of a performance, a phonogram, a videogram or a program made without authorization, where such is required, of the performer, the phonogram or videogram producer or the audiovisual communication enterprise ...". Article L. 335-9 of the CPI doubles the penalties if the offences defined in Articles L. 335-2 to L. 335-4 are repeated or if the offender has been contractually bound to the injured party. Unlawfully accessing or remaining in all or part of an automatic data processing system is punishable by a one-year term of imprisonment (Article 323.1 of the NCP). Hindering or altering the operation of such a system or unlawfully entering data, unlawfully deleting or modifying the data contained therein, are punishable by a three-year prison term (Articles 323.2 and 3 of the NCP). Article 323.4 of the NCP provides that "Participation in a group set up or an understanding reached for the purpose of preparing one or more of the offences specified in Articles 323.1 to 323.3, if one or more material facts have occurred, is punishable by the same penalties provided for the offence itself or for the offence most severely punished." -Monetary fines In the case of literary and artistic property: The aforementioned offences concerning the production or dissemination of works, phonograms or videograms, are punishable by a fine (combined with the term of imprisonment) of F 1,000,000. The same fine is imposed in the case of "Failure to pay the remuneration due to the author, the performer or phonogram or videogram producer in respect of private copying or public communication or of the telediffusion of phonograms ..." (third paragraph of Article L. 335-4 of the CPI). Pursuant to Article L. 335-9 of the CPI, these penalties are doubled in the event of repetition. Article L. 335-8 of the CPI provides for the criminal liability of legal persons for the aforementioned offences, and refers to the new Criminal Code. According to Article 131-38 of this Code, the maximum fine imposed on legal persons is an amount corresponding to "five times that specified for natural persons under the law that punishes the offence", in this particular case F 5,000,000. Unlawful access to an automatic data processing system is subject to a fine of F 100,000, in addition to a term of imprisonment (Article 323-1 of the NCP). Hindering the operation or unlawful alteration of the system's operation, or the unlawful entry, deletion or modification of data, are punishable by a fine of F 300,000, combined with a term of imprisonment (Articles 323-2 and 3 of the NCP). Article 323-4 referred to above imposes the same penalties for participating in a group of "hackers". Article 323-6 of the NCP provides for the criminal liability of legal persons by referring to Articles 131 38 and 131-39 of the NCP. The fine applicable to legal persons therefore varies from F 500,000 to F 1,500,000 depending on the offence committed. -Seizure, forfeiture and destruction of infringing goods and materials and implements for their production In the case of literary and artistic property: Pursuant to Articles L. 335-6 and L. 335-7 of the CPI, if there is a conviction "... the court may order confiscation of all or part of the proceeds obtained by reason of the infringement and confiscation of all phonograms, videograms, articles and copies that are infringing or have been unlawfully reproduced and of the equipment specifically installed for the purpose of committing the offence" (first paragraph of Article L. 335-6 of the CPI). The receipts, the articles and the equipment confiscated are handed to the victim or his successors in title to compensate them, without prejudice to payment of an indemnity (Article L. 335-7 of the CPI). With regard to infringement of automated databanks or databases by natural persons, Article 323-5 of the NCP provides for "the confiscation of the object used or to be used to commit the offence or the object that is the result, with the exception of objects liable to be restored". -Other In the case of literary and artistic property: The second paragraph of Article L. 335-6 of the CPI states that the court may order, at the cost of the convicted person, the posting of the judgement, and its publication in full or as extracts in such newspapers as it may designate, without the costs of such publication exceeding the amount of the fine incurred. Article L. 335-5 of the CPI provides that "... the court may order the total or partial, permanent or temporary closure, for a period not exceeding five years, of the establishment that has served for the commission of the offence" and the accompanying measures, at the expense of the person convicted, if staff are dismissed. With regard to the criminal liability of legal persons, Article L. 335-8 of the CPI refers to Article 131-39 of the Criminal Code. The latter states that legal persons other than public law legal persons or professional associations are liable to one or more of the following penalties, combined with the confiscation, publication and closure referred to above: -A ban, either permanently or for a period of five years, on directly or indirectly exercising one or more professional or social activities; -probation for a maximum period of five years; -exclusion from government procurement, either permanently or for a maximum period of five years; -ban on making a public issue, either permanently or for a maximum period of five years; -ban on issuing cheques (subject to certain limitations) or using credit cards, for a maximum period of five years. In the case of infringement of an automatic data processing system, Article 323-5 of the new Criminal Code provides that natural persons who have committed one of the aforementioned offences should be subject to the following penalties in addition to the penalties applicable to legal persons (including confiscation of the articles or equipment, publication of the judgement and closure of one or more of the company's establishments): -Deprivation of civic, civil and family rights for a maximum period of five years; -a ban on holding public office or exercising the professional or social activity in which or in the course of which the offence was committed, for a maximum period of five years. Article 323-6 of the NCP refers to Article 131-39 in respect of penalties other than fines applicable to legal persons.

See reply to Part I question 8.

[Answer 8: There are no special provisions on the cost and duration of proceedings. The duration depends on the complexity of the case, the efforts of the parties and the court's workload. The channels of appeal used by the parties (appeal, cassation) also have a significant impact on the overall length of proceedings. The cost of proceedings includes legal costs, mainly allowances paid to witnesses, payment of technicians, salaries of prosecuting officials and attorneys' fees. The cost therefore varies greatly according to whether or not technical expertise is required and the amount of the fee paid by the client to his attorney. The court may order the losing party to pay the attorney's fee up to the amount it fixes. Consequently, it is not possible to give details concerning the effective duration and cost of proceedings in this area.]

2 In French, the word "titulaire" (owner) of a right is used in preference to "détenteur" (holder) as used in the TRIPS Agreement. The footnote to Article 42 of the TRIPS Agreement states that "For the purpose of this Part, the term‘right holder’ includes federations and associations having legal standing to assert such rights."

3 Cf. Article 491 of the NCPC: "The judge sitting in chambers may pronounce the imposition of fines. He may fix the amount thereof ... ".