Software legal framework

Software is protected by copyright if it is possible to prove its originality.

The concept of originality makes sense to everyone in literary and artistic creations, but in software people often find it harder to understand.
It is necessary that:

“the choices made [may reflect] an intellectual contribution of their own
and a personalised effort on the part of the person who [developed] the software”

https://www.app.asso.fr/centre-information/publications/prouver-loriginalite-dun-logiciel (in French)

Algorithms, on the other hand, are considered to be mathematical formulae, and functionalities, which are considered to be ideas or concepts, cannot be protected.

Copyright applies from the moment the software is created, so it is essential to be able to date this creation. This can be proven by any means, although there are some dedicated mechanisms, in particular registration with the Agence pour la protection des programmes (APP).

Any proof of time-stamping can suffice, including a sealed envelope containing a USB key, which you send to yourself unopened, postmarked.
This solution can be cheaper than paying the APP.

Moral rights

Moral rights are:

Attached to the author of the work,
inalienable: cannot be transferred,
imprescriptible: legal action can always be taken,
perpetual: passed down through successive rights holders.

Moral rights include the right to authorship of the work (the author must be credited), the right to respect for the work (the author may object to any modifications that could distort their work), the right to disclose the work (the author decides when and under what conditions to make their work public) and the right to withdraw the work (the author may stop its exploitation).

Patrimonial rights

Patrimonial rights cover the exclusive right to exploitation and:

belong to the author or his rights-holders in title,
are transferable,
are prescriptible: 3 years in criminal cases, 10 years in civil cases,
are temporary: life of the author + 70 years.

Patrimonial rights grant the ability to benefit from the exploitation of the work and include the right of reproduction, the right of representation or communication, and the resale right.

For software created by a public agent in the course of his or her duties, the patrimonial rights are the property of the employing administration.

Art. L.113-9 du CPI : « Sauf dispositions statutaires ou stipulations contraires, les droits patrimoniaux sur les logiciels et leur documentation créés par un ou plusieurs employés dans l’exercice de leurs fonctions ou d’après les instructions de leur employeur sont dévolus à l’employeur qui est seul habilité à les exercer. »

The case of interns:
Since 15 December 2021, trainees have had a status closer to that of employees when it comes to ownership of inventions and software created during the traineeship.
Ordinance no. 2021-1658 concerns the author of software who does not have an employment contract or the status of public agent, and who is ‘hosted under an agreement by a public or private legal entity carrying out research’ (e.g. trainee, foreign doctoral student and professor or director emeritus). In this case, the ordinance provides for the automatic devolution of patrimonial rights to the host entity.

Key points

Copyright applies to software. In the case of software created by a public agent, the patrimonial rights (i.e. the exploitation of the work) are the property of the employer.
Important steps to take when creating software:

contact your employer’s legal department. For UGA: dgdriv-ip-legal@université-grenoble-alpes.fr
make an invention declaration if requested by the department
prepare an APP deposit