Website: intellectual work protected by copyright?

Within the framework of its activity, a company is often led to publish a website in order to present its services online. When certain conditions are met, this website is likely to be protected by copyright.

Do you want to protect your website and avoid your competitors from appropriating your intellectual creation? The lawyers at Goldwin Law Firm explain how to protect your website.

First of all, your website must be an intellectual work as defined by the French Intellectual Property Code (A). Then, it is necessary to characterize the original character of your website (B).

A. The application of the notion of intellectual work to the notion of website

Although there is no definition of intellectual work in the Intellectual Property Code, article L.111-1 paragraph 1 of this Code states that :

“The author of a work of the mind enjoys an exclusive intangible property right on this work, due to the sole fact of its creation, which is enforceable against all.”

In his capacity as holder of an exclusive intangible property right that can be used against all, the author of a work of the mind can oppose the reproduction, representation or disclosure of his work.

But what are the intellectual creations that are included in the notion of intellectual work?

The nature of the works included in this list is very varied. Thus, a book, a software or a speech are intellectual works according to the French Intellectual Property Code.

A fortiori, a website is likely to be considered as an intellectual work within the meaning of the Intellectual Property Code. On the other hand, in order for a website to be considered as a work of the mind within the meaning of the Intellectual Property Code, it must be marked by the intellectual contribution of its author.

In other words, for a website to benefit from copyright protection, it must reflect the personality of its author.

B. The application of the notion of originality to that of a website

The jurisprudence has come to specify what are the criteria for a website to be considered as a work protectable by copyright.

Therefore, for an intellectual creation to be considered as a work of the mind, this creation must be original. In other words, it must reflect the personality of its author, which is the case if the author was able to express his creative abilities during the creation of the work.

However, the courts are often reluctant to recognize that a website has an original character.

In a decision rendered on June 4, 2015, the Marseille Court of First Instance ruled that a website is an intellectual work and that, as a result, the publisher of this website was entitled to take action for infringement against a competitor who had used the visuals of the website without any authorization from him.

However, the Paris Court of First Instance refused to grant copyright protection to a website because the elements brought in support of such an allegation were insufficient to demonstrate the original character of the website. More specifically, the judges noted that:

“The choice of the colors black, red and gray is not the result of an aesthetic research and a personalized effort, especially since the use of the colors red and black because of the contrast created by the association of opposite colors is commonplace.”

It follows that a website is likely to benefit from copyright protection provided that its publisher manages to establish its original character. This is what has been judged by the Courts of Appeal of Paris and Rennes.

However, to achieve such a result, the creator of the website must choose a mode of expression that is specific to him and which is, therefore, necessarily distinct from the choice that another author would have made.

For more details concerning the application of copyright to the website you have published in the course of your business, you can contact our team of lawyers.

Transfer of a business without transfer of customers – What to do?

Transfer of a business without transmission of clientele – What to do?

You have just bought a business and you notice that the seller has not transmitted his clientele nor the professional telephone list attached to the business.

Despite the full payment of the transfer price, the transferee continues to carry on the business as if nothing had happened?

You must act!

First, you must make sure that your property can be qualified as a business.

Then, you can take action for failure to transfer the business on three legal grounds.

What is a goodwill in French law?

Craft activities are civil activities, carried out by an operator (the craftsman) subject to the unique regime of the individual entrepreneur.

A craftsman is one who derives most of his professional income from his manual work.

fonds artisanal

The transfer of a craft business (known as the transfer of a craft business) is not subject to any special provisions. Consequently, the provisions of the Commercial Code relating to the sale of a business are excluded (Cass. com. 29-10-1963, D. 1964.51: exemption from the requirement to advertise).

Requalification de fonds artisanal en fonds de commerce

Néanmoins, il est prudent de se conformer aux formalités de la cession de fonds de commerce pour pallier toute éventualité de requalification du fonds artisanal en fonds de commerce.

En effet, la jurisprudence emploie deux critères pour distinguer un artisan d’un commerçant (Cass. com., 21 mai 1985 : Bull. civ. IV, n° 16) :

l’importance du nombre de salariés, et
la part des revenus professionnels tirés de son travail manuel.

Ainsi, un chauffeur de taxi exploitant une seule voiture lui appartenant a la qualité d’artisan.

chauffeur taxi

However, the cab business becomes commercial if the company has more than ten employees.

In this case, the transfer of the cab business will be subject to the legal regime for the transfer of a business.

Consequently, you can claim that the legal regime for the transfer of a business has been violated if one of the rules provided for in this title is violated.

How to act when faced with a transfer of a business without customers?

The cab business is composed of the following elements :

a clientele, without which the
a vehicle,
special equipment, and
a parking permit.

If you are the transferee, you have three possibilities to act against your transferor in case of transfer of a business without a clientele, namely:

The action for nullity on the basis of the consideration

Let’s distinguish two arguments that can be used to support this claim:

Argument n° 1

Failure to mention the clientele in the deed of transfer

(lack of consideration)

Argument No. 2

Transfer of the administrative parking permit without customers

(illusory consideration)

The lack of consideration corresponds to the hypothesis in which the seller undertakes to transfer the ownership of a thing that does not exist.

On the basis of article 1168 of the Civil Code, the case law assimilates the imbalance between the services of the parties to a lack of consideration.

In this case, the disputed contract cannot be qualified as a transfer of a cab business, but would be a simple transfer of an administrative parking permit devoid of any meaning.

Consequently, you can act to have the transfer nullified for lack of clientele stipulated in the deed.

Case law deduces from article 1169 of the Civil Code that the parties must agree on a real consideration at the time of the formation of the contract

(Cass. civ. 1e, July 3, 1996, decision known as « Point club vidéo »).

In the contract of sale, the delivery of the thing is the counterpart of the payment of a not derisory price, and vice versa.

However, if your assignor transfers to you the administrative authorization to park without transferring to you his clientele or the professional telephone line attached to the business, you can oppose him the lack of real consideration to have the contract cancelled.

The action in nullity of the sale for lack of object

Article 1583 of the Civil Code in the French Law states that the essential elements of a contract of sale are the thing and the price.

échange

Thus, the sale is only possible under two conditions:

The thing exists (in the sense of article 1601 of the Civil Code), and
The thing is identified, in the sense that the performance which is the object of the obligation must be possible and determined or determinable (article 1163 of the Civil Code).

Failing this, the contract is void for lack of subject matter (Cass. civ. 3e, Jan. 24, 2019, no. 17-25.793).

The case law pronounces the nullity for lack of purpose of a transfer of shares of a company resulting from their disappearance by the effect of a merger by absorption (Cass. com., May 26, 2009, n° 08-12.691).

The claim for restitution of the transfer price and damages for breach of the warranty against the risk of eviction

What is the warranty against the risk of eviction?

The warranty against the risk of eviction is a commitment made by the assignor to ensure that the assignee has peaceful possession of the thing assigned after its delivery (article 1628 of the Civil Code).

cédée

In this respect, the assignor undertakes to :

to refrain from infringing upon the peaceful possession of the buyer (eviction by personal act), and
to guarantee the transferee against disturbances from third parties (eviction by third parties).
What are the sanctions?

Article 1630 of the French Civil Code provides for four cumulative penalties for breach of the warranty against the risk of eviction:

1° restitution of the price ;

2° restitution of the fruits, when he is obliged to return them to the owner who evicts him;

3° the costs incurred on the buyer’s claim for security, and those incurred by the original claimant;

(4) finally, damages, costs and fair costs of the contract.

For more information on the application of the law to your case, you can contact our team of lawyers, who will draw up a strategy adapted to your situation.

What is the bailiff’s responsibility?

The status of bailiff carries with it the guarantee of his activities thanks to the professional liability of the common law of the auxiliaries of justice. The breach of his obligations is provided for by rules specific to this profession. Thus, the bailiff has to engage his professional civil liability, notably in tort, which he can trigger because of his actions but also because of others, his employees.

Towards the principal, his liability is contractual and derives from the mandate contract (articles 1991 and following of the civil code) whereas it is tortious towards third parties (articles 1240 and 1241 of the civil code).

The bailiff is responsible for the execution of a legal decision, for example, by implementing all possible means to recover a debt. In case of overzealousness or lack of action, he is liable but it is up to the client to bring the proof of his lack of diligence.

This ministerial public officer is also responsible, as a drafter of documents, for errors of drafting or service for which he will then have the burden of proof.
It should be noted that in case of destruction of documents entrusted for the execution of a mission or for the service of documents, the prescription period to act is of 2 years as from the execution of the mission or the service.
The bailiff is also liable in case of violation of the tariff rules or the breach of professional secrecy.

His status also implies the respect of duties such as those :
– of information and advice ;
– of loyalty ;
– prudence and diligence;

Failure to comply with any of these duties, such as keeping silent about his actions or failing to verify certain elements justifying the execution of collection measures, may engage his professional liability.
In addition, damages may be claimed in the context of disciplinary proceedings against him.

In case of damage, it is up to the plaintiff to prove his prejudice, such as the loss of chance to recover his debt, and the causal link with the damage, in particular when the bailiff’s fault is not presumed.

The bailiff’s liability is guaranteed by his professional insurance. The bailiff’s civil liability coverage starts either at the time of the damaging event or at the time of the claim. The claimant has 5 years to act but this period is extended to 10 years according to the conditions provided for by a decree of 26 November 2004.

What is the banker’s responsibility?

One of the essential functions of the banker is to grant credit to his client. However, credit is a source of responsibility for the person who grants it. The failure to perform one of his duties will be likely to engage his liability, which is mainly subject to common law, both contractual with respect to his clients and tortious with respect to third parties. This is the case, for example

professional secrecy (article 226-13 et seq. of the Penal Code) covering only confidential information
the duty to advise;
the respect of the duty to inform, notably pre-contractual, on the content of the service he proposes to his client;
his duty to warn, by virtue of which he must alert the uninformed future contractor to the content and consequences of his contract. He is only obliged to do so in the event of a risk of excessive indebtedness. The burden of proof that the warning has been carried out is then on the bank. The limitation period for the damage consisting of the loss of opportunity not to contract, runs from the granting of the credit;
the bank’s duty to perform the contract, implying the performance of agreements in good faith;

Similarly, because of the strong intuitu personae that exists in credit transactions, a banker is never obliged to grant his client the credit requested, without having to justify it. However, if his decision is based on discrimination, he may be held liable for failure to comply with the public policy provisions of the Penal Code.

Two situations specific to the banker are particularly likely to engage his liability:

in the case of disputed credit that is at fault and has a causal link with the damage caused ;
in the event of fraud, characterized interference in the management of the debtor or disproportionate guarantees as provided for in article L 650-1 of the Commercial Code.

Thus, granting credit to a borrower in a desperate situation will be considered as fraud, the lack of discernment in the distribution of credit being considered as an unfair act.

Similarly, by virtue of his duty of non-interference, the banker does not have to interfere in the management and the study of the solvency of his client to assess the appropriateness (Article L 761-2 paragraph 2 of the Consumer Code), except possibly in the context of the fight against indebtedness. The banker may be held liable and ordered to bear all or part of the insufficiency of assets (article L.653-1 and following of the Commercial Code).

The banker also has a duty of care, before and during the business relationship, regarding the transactions carried out. In addition to a general obligation of prudence obliging him to refuse to lend his support to an obviously illicit operation, this duty induces for the banker an obligation to report any suspicion, within the framework of the fight against money laundering and terrorist financing (article 561-1 and following of the Monetary and Financial Code).

For all these situations, the banker may be held liable for « damages suffered as a result of the assistance granted ». The banker will be subject to the rules of ordinary liability law and will have to pay damages for the aggravation of the insufficiency of assets resulting from its fault in granting the loans, and its guarantees will be considered void.

What is the notary’s responsibility?

The notary must act in accordance with his duties as a ministerial officer. Therefore, he is subject to various obligations which, if not respected, are likely to lead to his liability, which is mainly subject to the rules of common law of tort liability.

The notary has a duty to advise, including an obligation to inform and warn. As one of his main functions is to draw up authentic acts that are binding on his clients, he has a duty to inform them of the nature, scope and consequences of their acts, particularly in relation to tax matters, regardless of the client’s level of knowledge and competence.

Furthermore, he is bound by a duty to warn against possible omissions or negligence.

Furthermore, the notary must ensure the validity and effectiveness of his acts and inform his clients of the requirements for their validity. This duty includes an obligation to instrument, i.e. the impossibility of refusing to perform an act for which their intervention is necessary and entitles the parties to expect an act that corresponds as closely as possible to the purpose they are pursuing.

He is also bound by his duty of professional secrecy.

Any damage directly caused by the notary’s fault may be compensated if proven.

Indeed, in the event of failure to comply with one of his obligations and the demonstration of a causal link between the alleged prejudice and the failure to comply with one of his duties, his liability will be engaged.

The burden of proof of the notary’s fault lies with the defendant notary, who must prove that he did not fail to comply with his obligations, which may be done by any means.

He may be exempted from liability in the event of force majeure or if it was probably impossible for him to know the information or risk.

The notary is not liable to third parties but only to all parties to the act, including those who did not contact him.

When his liability is engaged, his defense is taken in charge by the Chamber of Notaries. Likewise, compensation is not paid directly by the notary but by the professional liability insurance or, if it does not apply, by the guarantee fund.

Since the reform of the statute of limitations, the statute of limitations to act in liability, both contractual and tortious, is five years from the day when the holder of the right had knowledge or should have had knowledge of the facts.sabilité du notaire, c’est quoi ?

What is the accountant’s responsibility?

The chartered accountant is likely to engage his professional civil liability in case of breach of his duties committed within the framework of his activity. He is also responsible for the actions of his employees in the course of their professional practice.

Indeed, the expert is bound by contractual obligations towards his clients but can also engage his tort liability towards third parties, subject to the rules of common law.

The expert accountant must practice his profession with reference to the uses and ethical codes of the profession. Also, he must always keep his independence and respect the professional secrecy.

Furthermore, he is bound by :

A duty of information, advice and warning: he must transmit enlightened information in particular for his additional activities of legal and tax advice and on the risks incurred for certain operations;
An obligation of prudence: he must implement all the means necessary to the execution of his obligation in the best conditions and show vigilance on the respect of the deadlines, communication and verification of the elements necessary for his mission;
An obligation of diligence in the establishment, maintenance and monitoring of the accounts and transactions of his client, in particular by checking for possible frauds…

Also, the proof of negligence or errors related to one of these duties, is likely to engage his responsibility.

He may also be subject to disciplinary sanctions provided for by the regional chamber of the profession (reprimand, reprimand or suspension…) in case of illegal practice of the profession and misuse of these titles.

It is possible to act in responsibility against the company of chartered accountants or directly against the expert for the missions which he accomplished himself. The limitation period to act is 5 years, starting from the date of the knowledge of the damaging fact.

According to a decree, the expert accountant is protected by an insurance policy covering his professional civil liability. For other professional failures not covered by this guarantee, it is the insurance subscribed by the Superior Council of the Order of Chartered Accountants that will guarantee it.

What is the responsibility of the trustee?

The trustee, whether professional or not, may be held liable if a fault committed in the course of his duties has caused damage. The nature of his liability varies according to who has suffered the damage.

His liability will be contractual if the damage was caused to a syndicate of which he is an agent and tortious if the damage was caused to a third party or to a co-owner.

To engage his liability, it is up to the plaintiff to prove the prejudice and the causal link.

If the trustee has performed the necessary diligence and fulfilled his obligations, he cannot be held liable for the damages of the co-owner. However, if he has committed a fault in the context of an excess of power, his liability may be engaged.

The trustee may first of all, within the framework of his contract of mandate, engage his liability towards the syndicate of co-owners.

The latter is responsible for the faults committed by the syndic in the course of his duties towards the co-owners. In return, the syndicate may take recourse action to compensate for the fault personally committed by the syndic.

Indeed, the syndic, as the principal of the syndicate, is liable for the prejudices committed within the framework of his functions, for example

For a fault committed in the convening and holding of meetings;
For acts carried out by the syndic without, or in excess of, the authorization of the general assembly;
For the non-execution by the trustee of the decisions of the assembly;
For negligence committed in the administration of the building or the realization of work;
For negligence in taking the necessary measures to put an end to infractions committed by co-owners, such as legal action.

Finally, the syndic can be held liable directly towards the co-owners individually.

In principle, the syndic is only liable to the syndicate. Nevertheless, the co-owners, if they can act directly against the syndicate, can also choose to sue the syndic in case of direct and personal prejudice, outside of any action already taken by the syndicate.

The limitation period to act, both in contractual and extra-contractual liability, is 5 years.

It should be noted that a professional trustee, by virtue of his status as a property administrator, is subject by the Hoguet law of January 2, 1970, to obtaining a professional card and to a financial guarantee, including the obligation to take out insurance covering his professional civil liability in the event of professional negligence.

What is physician liability?

As a health professional, the physician is subject to a particular responsibility, the medical responsibility. In order to be engaged, the victim or his beneficiaries must demonstrate a fault, a damage and a causal link, except in the case of a damage resulting from defective material, a health product or a laboratory examination, for which the doctor’s responsibility is presumed.

Moreover, he can also be held responsible for the actions of others, for example as the head of a medical team.

To engage the physician’s liability, it is necessary to prove the breach of his obligations. The fault is assessed in abstracto, with reference to the normal behaviour of a doctor, without any particular degree of seriousness being required.

As a legal fact, proof can be provided by any means.

The physician may be considered to be at fault for various (non-exhaustive) breaches provided for in particular by the Code of Public Health or the Code of Ethics:

Failure to comply with his obligation of prudence and diligence: this is the case when an illicit act is performed, when a patient’s rights are not respected (dignity, consent, refusal…), when the duty to inform is not respected (on the diagnosis, the treatment, the inherent risks, administrative costs…)… In the case of lack of information and consent, it is up to the establishment and the doctor to bring the proof of the transmission of these elements in good and due form;
Failure to comply with the duty to assist: i.e. not abandoning a patient during treatment without continuing the care;
Breach of the duty of medical confidentiality;
Breach of duty of supervision;
In case of negligence, imprudence or clumsiness: for example in the implementation of a treatment or an operation or by disregarding « the acquired data of science » or the « rules of art »;
Non-compliance with the law or the practices of the profession.

However, a distinction must be made depending on whether the physician is self-employed or working in a public or private institution:

In the context of a private practice: the physician is personally liable insofar as he personally concludes the contract;
Within the framework of a practice within a public or private establishment, their status is harmonized:
Principle: the physician does not incur liability in the event of a « service fault » due to a hospitalization contract that directly binds the structure to the patient
Exception: the doctor is liable in case of personal fault, detachable from the service, considered as « voluntary and inexcusable breach of professional and ethical obligations ».

In case of fault, the professional health insurances take care of the medical breaches, as well as the « therapeutic hazard » can be compensated by the National Office of Compensation for Medical Accidents.

The limitation period for both private doctors and doctors working in private or public structures is 10 years, starting from the consolidation (evaluation and awarding of compensation) of the damage.

What is the architect’s responsibility?

The architect, in the context of his duties, may be liable for :

contractual in case of absence or bad execution of his obligations foreseen in the contract signed with the client or subcontracting ;
in tort in the event of personal injury or damage to third parties.

The nature and scope of his missions are generally defined in a contract and his obligations end with the acceptance and lifting of reservations issued on the modalities and materials of the works.

The architect is only responsible for faults that are personally attributable to him (excluding those committed by the contractor, for example).

The architect is subject to deontological obligations, as well as to the respect of the « rules of the art », i.e. the uses specific to the profession, such as ensuring the good execution of the work envisaged in the plans, for example.

Moreover, he is bound by a wide-ranging duty to inform, assist, be prudent and advise in the image of his mission, which begins at the design stage of the work and which may continue during the execution of the work until its acceptance (building permit, risks relating to the construction, design, cost of the work, conformity defects, etc.). Thus, he is bound by a duty of supervision in the context of the direction and control of the works.

If one of these duties is not respected, he will be held responsible on the contractual ground, within the limits of his skills and knowledge. It will be up to the plaintiff to prove the fault committed by the architect.

It is mandatory for the architect to have insurance covering his professional liability and that of his employees. Each contract between the architect and the client includes a certificate of insurance.

It should be noted that by virtue of the decennial responsibility, provided for in articles 1792 and following of the Civil Code, the responsibility and the guarantee of the architect can be sought as from the reception of work. At the end of this period, it will no longer be possible to seek his liability on the contractual ground, but only on the extra-contractual ground or for fraudulent conduct.

What is the responsibility of the website?

In order to obtain compensation for a loss suffered on a website, it is necessary to identify the activity of this website, more specifically its role as a publisher of online public communication content or as a hosting provider.

In the first situation, the website publishes its own content, while in the second, it offers the possibility to third parties to publish theirs.

The qualification of editor, induces a form of control of the editorial content, that is to say, of control of the information which is diffused there.

Also, these publishers, when they are professionals, are subjected to certain obligations as for example the mention on their site of a certain number of elements such as their corporate name, etc…

In the information sector, it is on the director of publication, thus the editor, that the presumption of responsibility rests rather than on the journalists or editors considered only accomplices. He is likely to see his responsibility engaged, as well tortious as contractual, in particular in case of publication of defamatory, incomplete, obviously illicit contents…

On the other hand, the host is the actor who will offer to others the possibility to store contents for an online public communication. His regime is provided for in article 6, I, 2 of the Law for Confidence in the Digital Economy of June 21, 2004, which defines him as: « natural or legal persons who ensure, even free of charge, for the purpose of making available to the public the storage by online public communication services of signals, writings, images, sounds or messages of any kind provided by the recipients of these services ».

The question of its responsibility arises, particularly in the absence of a content editor.

Indeed, the hosting provider has an obligation to remove and prevent the broadcasted contents. Nevertheless, he benefits from a particular liability regime, called « limited ». Thus, he will only be held liable in case of :

actual knowledge of the content, which must show a clear illegality ;
lack of diligence in the removal of the illegal content from the moment he has had knowledge of it, i.e. the reception of a notification.

He must therefore show passivity in the authority and knowledge of these contents and prove to exempt himself that he had knowledge neither of the illicit character, nor of the contents in itself.