This is a key concern for all creators, and with good reason. Why is it so?
If a creation is poorly protected, there is a risk that it will be misappropriated by a competitor. Protecting your creations means providing yourself with the means to act against infringers or unfair practices, but also enhancing the value of your creation and your intangible assets, stimulate creativity, increase your credibility, and develop in new markets.
Several means are available to creators to protect their creations.
- The secret.
The first instinct of an entrepreneur is not to disclose any information to his/her interlocutors and to avoid disseminating exhaustive business plans. Remaining as discreet as possible until the business is launched is the best protection for an idea.
There is no time limit, as long as the secrecy exists. However, this does not confer any exclusive right on the content of the secret.
If the project must be disclosed to third parties, such as service providers or investors, to enable it to be implemented, then this disclosure must be legally protected by a non-disclosure agreement.
It is recommended that proof of anteriority of the creation be established to anticipate any litigation.
- Intellectual property.
Intellectual property law confers exclusive rights on certain types of creations for a certain period. These are materialized creations since ideas cannot be protected under this law.
Intellectual property concerns creators in the artistic sense as much as those in industry. The advantages of holding private rights are that the holder of the rights can bring an action for infringement should his/her creation be copied, and that the creation can be valued as an intangible asset.
For more information on this point: intellectual property.
Several types of creations can obtain protection under intellectual property law if certain conditions are met:
- Patent registration:
It allows the protection of a product or a process providing a new technical solution to a given technical problem and grants a 20-year operating monopoly. Registration with the French National Institute of Intellectual Property (INPI) is necessary. Strict conditions must be met to benefit from this protection: novelty, inventive step, and industrial application.
To find out more about this point: patent protection.
- Trademark registration:
A trademark is a sign that distinguishes a company’s products and services from those of competitors. It must be registered with the INPI and must meet the conditions of distinctiveness, availability, and lawfulness. The protection is valid for 10 years and is indefinitely renewable .
To find out more: trademark law.
- Registration of designs:
This registration, also filed with the INPI, allows to protect the appearance and ornamentationof a product or a part of it. The protection is valid for 5 years and renewable for up to 25 years.
For more information on this point: the protection of a design.
- Copyright law:
This right protects intellectual works, which covers a wide range of creations: books, music, paintings, sculptures, films, software, databases, technical drawings, teaching materials, etc. The creation must be original. The protection is valid for 70 years after the death of the author.
It is automatically acquired by the mere fact of the materialisation of the creative work, there is no need to register it However, it is advisable to build up evidence to be able to prove the date and ownership of the creation, throug a proof of anteriority.
For more information on this point: copyright protection.
- Proof of anteriority.
For other types of creations that cannot be registered (intellectual creations benefiting from copyright, know-how, innovations that have not been completed or cannot be registered with the INPI, secrets, etc.) or cannot be protected by intellectual property law (concepts, ideas, etc.), security will be provided by defensive means.
This consists of obtaining proof of anteriority, which enables to prove that the creation existed at a certain date and to prove who the author is. It does not confer any title of ownership. Its interest is that it constitutes evidence, in a more or less conclusive manner depending on the means used, in the event of a conflict on the grounds of breach of confidentiality or unfair competition.
Here are some ways to establish a proof of anteriority:
- Sending a registered letter with acknowledgement of receipt (LRAR) to yourself:
It is possible to send a registered letter to yourself, containing the description of the creation and/or its materialisation. The postmark will serve as proof. It is important not to open the letter once received, otherwise the proof of anteriority will no longer be valid. This procedure is nevertheless very precarious.
- Soleau envelope:
This service is offered by the INPI, and allows to date a creation. Registration can be done online or by mail. The INPI keeps the envelope for 5 years, renewable once. The content of the enlevope is then either recovered by the creator or destroyed.
- Filing with a collecting and distributing society:
French societies such as SACD (society of dramatic authors and composers), SCAM (civil society of multimedia authors), SACEM (society of authors, composers, and music publishers) or SGDL (society of literary people) allow a creation to be deposited physically or online. The type of creation concerned and the storage period will vary according to the institution.
- Legal deposit with the French Bibliothèque nationale de France (BNF):
This deposit is not compulsory for authors, nevertheless, it could serve as evidence.
- Laboratory notebook:
This tool is used by laboratories and innovative companies to date their research work. It allows a written record to be kept and contains the essential information for reproducing the manipulations carried out.
- Timestamping and blockchain:
Often referred to as a “copyright” deposit, timestamping allows to date a creation and prove who the author is. This enables a work to be secured by establishing the anteriority of the timestamped creation. This service could be coupled with the use of blockchain, an ultra-secure method of storing and transmitting data in the form of linked blocks.
This method of proof is robust, unforgeable and guarantees the integrity of the content deposited. The backup duration will depend on the company providing this kind of service.
The Copyright.eu anteriority certificate provides incontestable proof of anteriority using qualified electronic timestamping and the use of blockchain, thus providing evidential value, even internationally.
- Deposit at a bailiff or notary’s office:
A bailiff’s report or a registration at a notary’s office is an authenticated deedwhich establishes the existence of the creation on a given day. The report is kept for 25 years.
This type of filing is more expensive, but the probative value is greater since it is indisputable until it is declared forged (i.e., proving fraud to challenge the validity of the date).
The Copyright.eu service also offers a “Premium Filing” allowing the intervention of a Bailiff and the delivery of an authenticated deed to strengthen the proof.
In conclusion, there are many ways of securing a creation, and several of them may even come one after the other or be combined based on the evolution of the creation. Depending on the method used, the rights and means of action will not be the same. It is therefore up to entrepreneurs to identify the content of their creation to determine which elements can benefit from intellectual property protection or from an alternative method of securing.
To apply for a Copyright.eu anteriority certificate, the process can be completed online. Please visit the following address: https://www.copyright.eu/depot-copyright-en-ligne/fonctionnement/
