Intellectual property disputes involving a public entity: jurisdiction of judicial courts

Any dispute in France raises the issue of which courts are legally entitled to settle the dispute: judicial or administrative. If there is any doubt involved - which is rare - a specialised Court (the Tribunal des Conflits) may be asked to give their opinion on the subject. The matter referred to in the following article raised an issue of this kind which was settled by the Tribunal des Conflits.
Following the entry into force of act n°2011-525 of 17 May 2011, article L. 331-1 of the French Intellectual Property Code provides that any claims relating to literary and artistic property "are exclusively brought before first instance civil courts (tribunaux de grande instance) which are determined by decree".

Even though parliamentary debates show that this law, when passed, intended to establish the specialisation of some judicial courts, it has nonetheless raised the question of whether or not the tribunal de grande instance was also specialised in the specific area of disputes which would normally be under the jurisdiction of administrative courts.

This question was referred to by the French highest administrative court (Conseil d’Etat) in two different cases.

In the first case, the litigation arised regarding a public contract. However, in this area, public procurement contracts are deemed to be administrative contracts (and therefore are subject to the jurisdiction of administrative courts) as a direct consequence of the law itself1. Therefore, the jurisdiction of administrative courts theoretically results from the rules governing the execution and performance of public contracts. But such a conclusion is not consistent with the jurisdiction rule set forth under the French Intellectual Property Code. In this very specific case, the Tribunal des conflits judged that "by way of exception to the rule (…) cases where the contractual liability of the public legal entities is sought in matters of literary and artistic property have fallen within the jurisdiction of judicial courts since the entry into force of Act of 17 May 2011" (Tribunal des Conflits, 7 July 2014, n°C3955).

In the second case, no contract had been entered into between the public person and the private party, who was a photographer and copyright owner. The Tribunal des Conflits ruled a fortiori that the exceptional jurisdiction of judicial courts should prevail over the general jurisdiction of the administrative courts (Tribunal des Conflits, 7 July 2014, n°C3954).

Thereby, the Tribunal des Conflits unifies the rules of jurisdiction in respect of disputes regarding intellectual property law, by extending to the field of copyright, the jurisdiction rule it had already set out as regards drawing and design2, brands3, patents4, geographical indications and rights on vegetal inventions5.

This new principle is of great importance for the drafting and performance of administrative contracts as the solution reached in the specific area of public procurement should indeed apply also to public-private partnership contracts (contrats de partenariat), to public service delegation contracts, public works concession contracts and even to public domain occupancy contracts. Therefore, and from a very practical point of view, public and private entities who enter into such contracts would be well advised to take special care in drafting intellectual and property clauses with reference to the rules set out by private case law.

Also, a coordinate approach between both public law specialists and intellectual and industrial property law specialists is, more than ever, necessary when it comes to dealing with the numerous public contracts which contain such features.


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Notes

1. Act n° 2001-1168 of 11 May 2001 referred to as "loi MURCEF", art. 2.
2. Tribunal des Conflits, 2 May 2011, n°C3770, pursuant to article L. 521-3-1 of the French Intellectual Property Code.
3. Tribunal des Conflits, 27 June 1988, n°C2542.
4. Tribunal des Conflits, 6 June 1989, n°C2572.
5. Provisions harmonised by Act of 17 May 2011, by using to the same wording as in the copyright field (for geographical indications and rights on vegetal inventions).