research team

Work on intellectual property, whether multiple properties or the ultimate expression of a single model (Sophie Alma-Delettre thesis), is carried out in constant confrontation with other disciplines and concepts. Particular attention is paid to situations where there is a "gap", or even a "rupture", between intellectual property law and common law (A), the articulation of performers' neighbouring rights with social law (B), and the protection of cultural goods using intellectual property tools (C).

A. Intellectual property and common law

The question of the status of the immaterial, with its perspective of intellectual property, runs through all the team's work (see "La réserve de propriété: un mécanisme pour l'immatériel", Sandrine Roose-Grenier thesis, 2008). In her work on intellectual co-ownership, Agnès Robin has been particularly active in confronting the notion of intellectual property with that of indivision.

In addition, the abundance of intellectual property law articles published by members of the team testifies, if proof were needed, to ERCIM's scientific presence in these fields of research, not to mention the participation of teacher-researchers in numerous symposia organized by bodies as diverse as the University, the CNRS, the Senate, the Académie des Sciences, the ABF, the AFPIDA, the Direction des Archives de France, the Fondation Nationale des Sciences Politiques, the GFFI, the IRPI, the UPC...

Two collective projects in particular provided an opportunity to refine this reflection on the confrontation between specific law and common law: the seminar on " Proprietary models" (1), and the book " Intellectual property and common law " (2).

1. Proprietary models" seminar

CECOJI - Centre d'Études sur la Coopération Juridique Internationale - UMR 6224 - has invited ERCIM to take part in a research program on the theme of " Proprietary models in the 21st century ", an opportunity to discuss new forms of appropriation, and to reflect on the way in which the technique of ownership is used in different branches of law (intellectual property, law of the living, the tangible and the intangible, cultural law).

The idea was to bring together a group of researchers and teacher-researchers (around thirty) over a two-year period, both privatists and publicists, in seminars designed to explore a number of themes around the question of proprietary models.

A first seminar was held in Poitiers on June 2, 2005, on the theme of " Exclusivism and individual property ". A second seminar was held in Sceaux on November 4, 2005, on the theme of " L'inappropriable ", with the participation of Nathalie Mallet-Poujol, on the status of information.

A seminar was organized by ERCIM in Montpellier on May 3, 2007, on the subject of " Collective appropriation ", based on the examples of land and intellectual property.

2. Intellectual property and common law" book

The members of ERCIM have published a book on the theme of " Intellectual Property and Common Law ". The aim was to analyze the relationship between the specific regime of intellectual property law - known as "special" law - and common law - shaped by the powerful matrix of the Civil Code. This wide-ranging study was undertaken at a time when the issue of the scattering of intellectual property and the inflation of new monopolies is constantly being raised.

An analysis of the interactions between common law and intellectual property law was presented in the light of examples that are necessarily limited, but which represent the first milestones in a process of reflection that promises to be fruitful. It was of the utmost importance to fully grasp the dynamics of intellectual property law in order to better defend its values and particularities, especially in the age of the immaterial society. The aim of this research was not to erase the specificities and purposes of intellectual property law in favor of an omnipotent common law, nor to dismiss the potential offered by the latter. The richness of the legal organization of rules applying to intellectual creations (works of the mind, neighbouring rights, designs and models, patents, trademarks, plant varieties, topographies of semi-conductor products) cannot be exempted from reference to a "droit-souche", especially if this droit-souche enables it to provide answers to questions raised in practice, in the event of failure of the specific law. A "residual" right, as it were...

Complementarity, opposition, rivalry, incompatibility, principal vs. subsidiary, general vs. special: these are the links deciphered between these two branches of law, with the birth and subsequent destiny of intellectual property law as the common thread. This analysis covers a wide range of issues, from joint ownership in the field of intellectual property, to the abuse of intellectual property rights, to their reconciliation with competition law.

ERCIM organized a seminar on these issues in Montpellier onMay 30,2006. The book entitled "Propriété intellectuelle et droit commun " was published by PUAM in 2007.

• Reference: Propriété intellectuelle et droit commun (edited by J.-M. Bruguière, N. Mallet-Poujol and A. Robin), PUAM, 2007.

B. The status of performers

The status of the salaried performer is one of the least explored themes in literary and artistic property law, and in the atypical employment regimes of the French Labor Code. Its study is part of the more general issue of salaried creation, as it requires a better understanding of the relationship between labor law and literary and artistic property law, which is often presented as conflicting. This analysis is linked to the difficulties encountered by doctrine and jurisprudence in integrating the compromise reached by the legislature when it passed law no. 85-660 of July 3, 1985. This law grants performers intellectual property rights over the exploitation of their performances. In so doing, it gave them the subjective rights they had been demanding since the beginning of the ^twentieth century.

This compromise consisted in taking account of social achievements while legally recognizing performers' specific intellectual property rights, the spirit and structure of which are modelled on copyright. The members of ERCIM therefore felt that it would be timely to take stock of the relationship between these legal systems, and to propose a symposium that would address the many questions still raised by a status that is the fruit of the evolution of literary and artistic property and changes in labor law in Europe, and particularly in France. A comparison with the approaches adopted by other European Union and common law countries was obviously essential. At a time of crisis for intermittent workers in the entertainment industry and the difficulties caused by Internet downloading, the question of the status of performers was - and still is! - of particular acuity ...

ERCIM organized a symposium on performers' rights, held at the Faculté de Droit de Montpellier onJune 6and 7, 2007. Speakers included performers, intellectual property and labor lawyers from France and abroad, and representatives of authors' societies and artists' and producers' unions.

The conference proceedings, entitled "What rights for performing artists? ", were published by Dalloz in 2009, in the "Thèmes et commentaires : la propriété intellectuelle autrement" collection.

• Reference: Quelles droits pour les artistes du spectacle (under the dir. M. Vivant, N. Mallet-Poujol and J.-M. Bruguière), Dalloz, 2009.

C. The status of cultural property

The protection of cultural property and the growing importance of the notion of cultural heritage have undeniably called into question intellectual property law, particularly copyright (see the work of S. Joly). Copyright is intended to protect, among other legal objects, cultural property. Yet this confrontation is not straightforward. Copyright was conceived as an incentive and aid to cultural creation, in that it contributes to the remuneration of creators. However, as a monopoly of exploitation, it is seen by some - against a backdrop of demands for free access to works of the mind and in the name of the public interest - as an obstacle to the right to culture. The practice of file-sharing on the Internet, for example, has crystallized this tension and prompted reflection on these new points of tension!

The launch of the Master Recherche " Droit des Biens Culturels " at the Faculté de Droit d'Avignon in May 2005 was the occasion for a seminar entitled " Intellectual Property and Culture ". The seminar was organized by the " Biens, normes et Contrats " laboratory, a host team of the Faculté de Droit d'Avignon. ERCIM was closely involved, with the participation of Jean-Michel Bruguière, Nathalie Mallet-Poujol and Michel Vivant. The proceedings of the seminar, entitled "Droit d'auteur et culture", were published by Dallozen in 2007, in the collection "Thèmes et commentaires : la propriété intellectuelle autrement".

The collaboration between these two teams has naturally continued, notably with the publication of a special issue of Revue Légicom, n° 36, 2006/2, on "Les biens culturels",in which members of ERCIM and the " Biens, normes et Contrats " laboratory were involved.

The legal landscape of communications law has been profoundly altered by the phenomenon of networks and the Internet. If there's one place (albeit a virtual one) where traditional patterns are being overturned, it's cyberspace.

There's no shortage of subjects to challenge copyright in the face of the rise of "free software", the boom in electronic publishing (or the emergence of new computer creations). Trademark law is similarly confronted with the practice of domain names, both nationally and internationally.

But the upheaval goes beyond intellectual property law. Distribution law must now be thought of in terms of "Cyber-distribution" (see the work of S. Alma-Delettre), while burning questions of a different nature are emerging, such as the liability of Internet technical service providers, or electronic tracking on the web and the " right to digital forgetting " (see the work of N. Mallet-Poujol), with all the risks involved in protecting privacy and freedoms.

More than ever, this is a reflection on " rupture "...

In addition to numerous individual works, reflection on Internet law is mainly carried out through regular publications and columns.

For many years, Michel Vivant has directed Lamy Droit de l'Informatique et des Réseaux, which in 2012 became Lamy Droit du Numérique , the leading authority on the subject (and to whose writing Nathalie Mallet-Poujol now contributes the " Informatique et Libertés " developments).

Now associated with this work is the Revue Lamy Droit de l'Immatériel - RLDI - edited by Pierre Sirinelli and Michel Vivant, in which ERCIM members play a major role.

Two types of "recurring" work are carried out in teams.

• Juris-Classeur "Electronic commerce

ERCIM has taken charge of a Juris-Classeur " Electronic Commerce ", integrated into the Juris-Classeur Commercial. In addition to intellectual property issues, the entire phenomenon of dematerialized commerce is the focus of our investigations. Publications include "Cyberdistribution" (S. Alma-Delettre, 2007); "Le commerce électronique et le consommateur" (J.-M. Bruguière), "Commerce électronique et publicité en ligne" (S. Joly), "Commerce électronique et protection des données personnelles" (N. Mallet-Poujol), "Attribution et contentieux des noms de domaine" (E. Tardieu-Guigues, 2007), "Places commerciales virtuelles", (A. Robin et M. Vivant, 2007).

• Internet law" column in JCP éd. E

The team has also taken charge of the "Droit de l'Internet" column in the JCP édition entreprise, in which both senior and junior researchers (ATERs) are involved.

How can we protect and enhance them?

How can we reconcile the respective interests of researchers and teaching and research organizations with those of the general public, who legitimately aspire, if not to access, at least to benefit from the results of research?

What balance should be struck between public and private interests in the commercialization of public research?

These questions, which are fundamental in a knowledge-based society, are the focus of three collective projects:

• the Innovation and Research Act (A),
• laboratory notebooks (B)
• and legal protection of biodiversity (C)
• and the law applicable to scientific data through the CommonData (D) research program.

 A. Ten years of application of the Innovation and Research Act

On March 19 and 20, 2009, the ex-ERCIM organized a conference in Montpellier entitled " Ten years of application of the law on innovation and research (1999-2009): assessment and prospects ". This event was doubly justified: innovation and commercialization are at the heart of debates on the organization of research, and the Law on Innovation and Research of July 12, 1999, known as the "Allègre Law" (LIR), had entered its tenth year. It was therefore both useful and interesting to take stock of the results of the application of this original measure.

Although this scheme was one of the flagship instruments of the proactive R&D policy implemented since the mid-90s, its adoption was not widely publicized and went relatively unnoticed. The aim of this general policy was to develop and concretize exchanges between the public research administration and the business world. It was intended to encourage technology transfer from public research to the private sector, while at the same time valorizing the results of public research.

Analyzed in terms of each of its provisions, the law proved to have met with uneven success. In spite of everything, the law has intrinsically constituted a "soft revolution": the concepts it introduced and wields - academic capitalism, university entrepreneurship, valorization of research - have now entered common parlance, whereas they were still unknown in France in the 90s (the Bayh-Dole Act adopted in the United States dates back to 1980) and are today at the heart of innovation policy.

Twenty-eight participants took part in the two-day event. The choice of speakers was made with a view to bringing together, in a deliberately open manner, all the players who have participated or are participating in the design and implementation of commercialization policies, or in the reflection on issues surrounding the commercialization of public research results. The various round tables and forums brought together academics (lawyers and economists) specializing in intellectual property, public law and corporate law, as well as practitioners: maître des requêtes at the Conseil d'État, general rapporteur at the Commission de déontologie and industrial property attorneys experienced in negotiating partnership contracts.

Alongside legal experts, we also heard from political players (members of parliament, staff from technology transfer departments, incubator managers, INPI, local councillors and government representatives). Finally, the discussions could not be conducted without also hearing from researchers who have embarked on the ITA adventure by valorizing the results of their research in the private sector, notably through the creation of a company.

The proceedings, entitled " Innovation and research in France ", were published by Larcier in2010.

B. Laboratory notebook

On December 3, 2010, the ex-ERCIM organized a seminar on " Le cahier de laboratoire : pratiques et enjeux" at the Faculté de Droit de Montpellier, in collaboration with the École Polytechnique féminine - EPF. In addition to academics, the seminar was attended by university research and development officers, jurists from the CURIE network, pharmaceutical laboratory managers, industrial property attorneys, sales managers and the president of the salaried inventors' association, who discussed the issue of recording research results (institutional framework, research and development services, qualitative evaluation and electronic laboratory notebooks) and their attribution (contract research, proof of anteriority and patent rights).

• Reference : A. Robin, " Le cahier de laboratoire : instrument de preuve privilégié des contrats de recherche ", Propr. ind., n°11, oct. 2011, Etude 16.

C. Biodiversity and the law

The ex-ERCIM organized on May 24, 2012, the Faculty of Law of Montpellier, a symposium on " The protection of biodiversity and the law ", legal session (S 26), of the ^13thCongressof the International Society of Ethnobiology.

In the run-up to " Rio + 20 " - the celebration of the twentieth anniversary of the Convention on Biological Diversity (CBD) signed in Rio de Janeiro on June 5, 1992, under the aegis of the UN - this event was the occasion for a number of important presentations on the protection of genetic resources and associated traditional knowledge, by law and economics professors and researchers, as well as by practitioners: judges, company lawyers and industrialists. Topics covered included the legal status of genetic resources, the protection of indigenous traditional knowledge, scientific collections and databases, and industrial property in research and development (see the papers by C. Le Gal and V. Rage-Andrieu).

At the heart of the debate was the Access and Benefit Sharing (ABS) mechanism, the fair and equitable sharing of benefits arising from the use of genetic resources, the third objective of the CBD, the modalities of which were specified by the Nagoya Protocol of 2010.

Discussions highlighted the need to clarify and harmonize a number of concepts and procedures at international level, in order to reassure the various biodiversity stakeholders: governments, indigenous and local communities, researchers and industry.

Only then will research and development activities flourish, against a backdrop of intellectual property rights, to turn this new " green gold " into a genuine source of revenue for suppliers and users alike.

D. The CommonData research program

Since 2016, the ex-Ercim has initiated a research project relating to scientific data, entitled CommonData ("Research data, scientific commons") under the direction of A. Robin.

The aim of the project is to understand how researchers manage their data, and what policies can be put in place to reconcile their mission of disseminating knowledge with their mission of valorizing the results of their research.

The development of digital technologies, which is disrupting both the practice of science and the economics of scientific publishing, has forced the legislator to intervene on a number of issues. This intervention has once again called into question researchers' practices with regard to the publication of their scientific work(open access) and the dissemination of their data(open data).

The CommonData research program ("Les données de la recherche, des communs scientifiques?") is led by MSH Sud, in partnership with Agropolis Fondation, Labex Agro, Labex Numev, Labex CemeB, EPF, INSERM U 1123 ECEVE, the University of Montpellier and CNRS.
The aim is to initiate collective reflection between different disciplinary fields in the Montpellier scientific community (and beyond), on the legal and social dimensions of scientific data and on the practices of researchers and institutions (see the work of A. Robin).