The author's moral right to withdraw a work (droit de repentir): a French perspective

Abstract:

"Legal context Created in France by the legislator in Article 32 of the law No. 57-298 of March 11, 1957 on “literacy and artistic property”, which has now become Article L. 121-4 of the French Intellectual Property Code (“FIPC”), the right to reconsider or withdraw — also known as droit de repentir — a work enables an author to default on the terms of an assignment agreement in deference to an intellectual, aesthetic or moral rationale.

Key points As such, the droit de repentir consecrates a legal impediment to two main principles of general contract law: the binding force of a contract and the principle of contractual autonomy. Such impediments were anticipated by the legislator, which imposed strict conditions on the use of droit de repentir, namely : (i) the prior indemnification of the assignee and (ii) the obligation to offer the right of exploitation in the first instance to the assignee in the situation where, after the exercise of his droit de repentir, the author decides to exploit his work again.

Practical significance Both the judiciary and academics recognize and imply even stricter conditions and only apply the droit de repentir in relation (i) to an author, (ii) with respect to the patrimonial rights, (iii) of his work, (iv) which have already been divulged. In the age of the internet, it is arguable that further conditions should apply."