A foreign founder can build a French company around code before the company has a large team, a French office or a long commercial history. The first employee may write the application, maintain the source repository, design the technical architecture and create the first patentable solution. That concentration of value creates a practical legal question: does the French company own the software, or does the developer keep rights that can obstruct fundraising, licensing, an acquisition or a dispute with a departing employee?<\/p>\n
French law does not answer every part of that question with one broad \u201cwork made for hire\u201d rule. Software has a special copyright regime. The economic rights in software created by an employee in the course of employment or on the employer\u2019s instructions are generally transferred by operation of law to the employer. Other creations, such as non-software documentation, graphic assets, inventions and pre-existing code, may follow different rules. A patentable technical invention can also trigger a statutory right to additional remuneration for the employee.<\/p>\n
For a foreign-owned French company, the safest approach is to separate the assets, identify the legal employer, record the employee\u2019s instructions and preserve a chain of title. This article explains the allocation of rights, the difference between software copyright and employee inventions, the contract provisions that make ownership provable, and the evidence a founder should preserve before an investor or buyer asks for it.<\/p>\n
For the broader incorporation sequence, see the firm\u2019s French company formation guidance<\/a>, then use this article as the intellectual-property workstream for the first hire.<\/p>\n The first distinction is between the person who creates the work and the person who may exercise its economic rights. Under Article L111-1 of the French Intellectual Property Code<\/a>, the author normally acquires an exclusive intangible property right from creation. The same provision states that an employment or service contract does not, by itself, remove that right, subject to the exceptions in the Code. A foreign founder should therefore avoid importing the legal vocabulary of an American \u201cwork made for hire\u201d agreement and assume that every asset belongs to the company. The French exception must be identified asset by asset.<\/p>\n Software is one of those exceptions. Article L112-2, 13\u00b0<\/a> expressly includes \u201cles logiciels, y compris le mat\u00e9riel de conception pr\u00e9paratoire\u201d among works protected by copyright. The protection covers the program and preparatory design material, not an abstract business idea. Source code, object code, certain technical documentation and the expressive form of the program must be distinguished from a concept, a functional requirement or a mathematical method.<\/p>\n The key rule is Article L113-9 of the French Intellectual Property Code<\/a>. Its text provides: \u201cSauf dispositions statutaires ou stipulations contraires, les droits patrimoniaux sur les logiciels et leur documentation cr\u00e9\u00e9s par un ou plusieurs employ\u00e9s dans l’exercice de leurs fonctions ou d’apr\u00e8s les instructions de leur employeur sont d\u00e9volus \u00e0 l’employeur qui est seul habilit\u00e9 \u00e0 les exercer.\u201d In English, the economic rights in qualifying software and its documentation vest in the employer, which alone may exercise them, unless a more favourable statutory or contractual arrangement applies to the employee.<\/p>\n That automatic vesting has four limits that matter to an overseas founder.<\/p>\n First, the rule concerns economic rights. It does not turn the employee into a fictitious non-author. The developer remains the natural person who created the work. Article L121-1<\/a> says: \u201cL’auteur jouit du droit au respect de son nom, de sa qualit\u00e9 et de son oeuvre.\u201d The company should handle attribution, modification and publication consistently with the special software rules and the contract. For software specifically, Article L121-7<\/a> limits the author\u2019s ability to oppose a modification that does not harm honour or reputation and removes the right of repentance or withdrawal, unless a more favourable provision applies.<\/p>\n Second, the creator must be an employee of the relevant employer when the software is created. If the code was written before incorporation, by a founder personally, by a foreign parent\u2019s employee or by an independent contractor, Article L113-9 is not a substitute for a transfer or licence. A French subsidiary cannot treat a parent company\u2019s repository as its own merely because the same group paid the developer. The contract with the actual creator and the intercompany document must match the commercial reality.<\/p>\n Third, the code must be created in the course of the employee\u2019s functions or according to the employer\u2019s instructions. A job title alone is weak evidence. A developer\u2019s employment description, technical tickets, architecture decisions, repository permissions, acceptance messages and contemporaneous instructions show what the parties actually assigned. Working from a home office, using a personal computer or committing code outside the formal working day does not by itself decide the issue. Conversely, an employee\u2019s personal project, created outside the assigned functions without the company\u2019s instructions or resources, should not be swept into the company\u2019s ownership merely because the author is employed.<\/p>\n Fourth, the automatic rule does not safely capture every adjacent asset. A user-interface illustration, marketing copy, training video, database structure, customer documentation, domain name, invention, open-source contribution or pre-existing library may require a separate analysis. The contract should describe the deliverables broadly enough to identify the business asset, but it should not pretend that one sentence can override mandatory rules applying to copyright, patents or employee remuneration.<\/p>\n The first judicial reference useful for a foreign founder is Cass. 1re civ., 3 July 1996, no. 94-15.566<\/a>. The Court stated: \u201cLa personne morale qui divulgue et exploite une oeuvre, tel qu’un logiciel, sous son nom, est pr\u00e9sum\u00e9e, \u00e0 l’\u00e9gard des tiers contrefacteurs, \u00eatre titulaire sur cette oeuvre du droit de propri\u00e9t\u00e9 incorporelle de l’auteur.\u201d This is a presumption in a dispute with a third-party infringer, not a licence to neglect the employment file. It shows why a company that publishes and exploits a product should keep evidence of its role, but it does not eliminate a former employee\u2019s ability to challenge the chain of title between the parties.<\/p>\n The second reference is Cass. 1re civ., 15 June 2016, no. 14-29.741<\/a>. In a dispute involving a jointly created software program, the Court held that \u201cl’exploitation d’un logiciel par un de ses coauteurs sans le consentement de l’autre porte n\u00e9cessairement atteinte aux droits de M…\u201d and constitutes infringement. The commercial lesson is direct: if a first employee, founder, contractor and parent-company engineer all contributed material code, the company should document the rights of each contributor before distributing or licensing the product. A repository history can identify contributors, but it is not itself a complete transfer agreement.<\/p>\n The practical test is therefore not \u201cwas the programmer on payroll?\u201d It is:<\/p>\n If the answer is yes, Article L113-9 gives the French company a strong statutory basis for exercising the economic rights in the qualifying software. The contract and evidence file still matter because automatic vesting is only useful when the company can prove that the statutory conditions are satisfied.<\/p>\n Copyright and patent law must not be merged. A program \u201cas such\u201d is excluded from patentability by Article L611-10 of the French Intellectual Property Code<\/a>, which lists \u201cles programmes d’ordinateurs\u201d among items not considered inventions when claimed as such. The same article preserves patentability where the claim concerns a technical invention meeting the statutory requirements of novelty, inventive step and industrial applicability. A software-enabled control of a machine, a technical signal-processing solution or a technical security mechanism may therefore require a patent analysis; a business method or an abstract algorithm does not become patentable simply because it is implemented in code.<\/p>\n When a technical solution may be patentable, Article L611-7<\/a> creates three broad categories for an employee inventor. An invention made under a contract containing a mission inventive corresponding to the employee\u2019s actual functions, or during studies and research expressly assigned to the employee, belongs to the employer. The employee must be informed when a patent application is filed and, where applicable, when the patent is granted, and the conditions for additional remuneration are set by the collective agreement, company agreement or individual contract. Other inventions normally belong to the employee, although an invention made in the course of employment, in the company\u2019s field or with company-specific means or data may be attributable to the employer against a just price.<\/p>\n For a founder, this means that a clause saying \u201call intellectual property belongs to the company\u201d is not a substitute for a functioning invention procedure. The company should state whether research and development is part of the employee\u2019s mission, establish an invention-reporting channel, date the disclosure, preserve the technical contribution and identify the remuneration rule. The company should also avoid promising that every invention will be treated as ordinary software copyright. The statutory categories and the applicable collective agreement may change the financial outcome.<\/p>\n The case law gives an unusually useful map of the risk.<\/p>\n In Cass. com., 22 February 2005, no. 02-18.790<\/a>, the Court quoted Article L611-7 and confirmed that \u201cles conditions dans lesquelles le salari\u00e9, auteur d’une invention r\u00e9alis\u00e9e dans l’ex\u00e9cution de son contrat de travail comportant une mission inventive, b\u00e9n\u00e9ficie d’une r\u00e9mun\u00e9ration suppl\u00e9mentaire, sont d\u00e9termin\u00e9es par les conventions collectives, les accords d’entreprise et les contrats individuels de travail\u201d. A contract should therefore identify the applicable source rather than leave the bonus question to a later negotiation after the invention has commercial value.<\/p>\n In Cass. com., 22 February 2005, no. 03-11.027<\/a>, the Court held that the statutory change requiring additional remuneration could not be neutralised by a less favourable collective-agreement clause. Its reasoning states that the employee \u201cdoit dor\u00e9navant b\u00e9n\u00e9ficier d’une telle r\u00e9mun\u00e9ration suppl\u00e9mentaire\u201d. A foreign parent cannot solve the problem by inserting a group policy that silently removes an employee\u2019s mandatory French entitlement.<\/p>\n In Cass. soc., 2 June 2010, no. 08-70.138<\/a>, the Court stated: \u201cIl r\u00e9sulte de l’article L. 611-7 du code de la propri\u00e9t\u00e9 intellectuelle que le salari\u00e9, auteur d’une invention, b\u00e9n\u00e9ficie d’une r\u00e9mun\u00e9ration suppl\u00e9mentaire\u201d. The decision also examined whether the inventions were made before the employment relationship and as part of a contribution to the company. That is a warning for a startup whose first developer joined after an early prototype: the pre-employment history must be recorded, not reconstructed during a financing round.<\/p>\n In Cass. com., 12 February 2013, no. 12-12.898<\/a>, the Court explained that the employee\u2019s right \u201cne soumettent le droit \u00e0 cette r\u00e9mun\u00e9ration \u00e0 aucune autre condition que la r\u00e9alit\u00e9 de l’invention\u201d. The quotation comes from the Court\u2019s reasoning on the statutory right. It is not a rule that every piece of code earns a patent bonus. It is a rule that, once a qualifying invention exists, an employer should not add an extra condition that the statute does not impose.<\/p>\n In Cass. com., 9 December 2014, no. 13-16.559<\/a>, the Court recalled that \u201cle juge doit tenir compte notamment de l’int\u00e9r\u00eat industriel et commercial de l’invention\u201d when assessing additional remuneration. For an early-stage company, a technical contribution that later becomes the core of a high-value product should be documented at the time of disclosure, even if its financial value was unknown on the filing date.<\/p>\n In Cass. com., 26 April 2017, no. 15-29.396<\/a>, the Court stated that \u201cil appartient \u00e0 la Commission nationale des inventions de salari\u00e9s ou aux tribunaux de fixer le montant\u201d when the contractual and collective framework does not settle the additional remuneration. A founder should not wait for litigation to discover that the contract did not identify a calculation method or the responsible internal contact.<\/p>\n In Cass. com., 31 January 2018, no. 16-13.262<\/a>, the Court considered the circumstances of the invention, the employee\u2019s contribution and the advantage the company could obtain. The decision records the distinction that \u201cla r\u00e9mun\u00e9ration suppl\u00e9mentaire pour une invention de mission ne tend pas \u00e0 r\u00e9tribuer le salari\u00e9 pour son travail\u201d. That distinction prevents a company from arguing that ordinary salary automatically covers a statutory invention payment.<\/p>\n Finally, Cass. soc., 25 September 2019, no. 18-16.722<\/a> addressed the interaction between a collective agreement and the employee\u2019s statutory entitlement. The Court\u2019s analysis shows that a clause may be set aside to the extent that it limits the right created by Article L611-7, while the remaining calculation provisions may need a separate analysis. A foreign founder should have French counsel identify the applicable collective agreement before promising equity, a bonus or a fixed salary as the only reward for technical innovation.<\/p>\n The jurisdictional route also matters. Article L615-17<\/a> places civil actions relating to patents, including cases under Article L611-7, before the judicial courts designated by law. A dispute about additional remuneration or patent ownership is therefore not handled like an ordinary payroll adjustment. Preserve the invention report, the technical records, the patent correspondence and the remuneration calculation as one file.<\/p>\n The dividing line is clear. The company\u2019s ordinary source code can fall under Article L113-9. A technical invention connected with that code may additionally fall under Article L611-7. The first rule concerns the employer\u2019s economic rights in qualifying software; the second allocates patent rights and protects the employee\u2019s right to additional remuneration or a just price. The contract should address both without claiming that one regime replaces the other.<\/p>\n The employment contract should begin by naming the legal employer precisely. Use the French company\u2019s registered name, registration number and registered office, not only the foreign group brand. A Kbis is the official extract showing a company\u2019s registration details; it is commonly obtained through the commercial court registry, known as the greffe, and is often requested by a bank, investor or contracting party. The Kbis is evidence of corporate identity, not evidence that the company owns every line of code. It should nonetheless match the employer name in the contract, repository policy and invoices.<\/p>\n The contract or an annex should then describe the employee\u2019s role in functional terms. \u201cSoftware engineer\u201d is useful but not enough. Add the expected products, modules, documentation, tests, architecture work, security work, deployment tools and research tasks. State who may issue technical instructions and how those instructions are recorded. An issue tracker, design document, pull request or written message can link the work to the employee\u2019s functions, but the company should retain the relevant record and not rely on a private messaging account that may disappear when the employee leaves.<\/p>\n The IP schedule should have separate sections for:<\/p>\n For software, the agreement should confirm that the parties intend the employee\u2019s work to be performed in the company\u2019s functions or according to the company\u2019s instructions. This is evidence of the Article L113-9 conditions; it should not be drafted as though the clause alone creates an automatic transfer for work that falls outside those conditions.<\/p>\n For non-software copyright assets, a transfer clause must satisfy Article L131-3<\/a>. The provision says: \u201cLa transmission des droits de l’auteur est subordonn\u00e9e \u00e0 la condition que chacun des droits c\u00e9d\u00e9s fasse l’objet d’une mention distincte dans l’acte de cession et que le domaine d’exploitation des droits c\u00e9d\u00e9s soit d\u00e9limit\u00e9 quant \u00e0 son \u00e9tendue et \u00e0 sa destination, quant au lieu et quant \u00e0 la dur\u00e9e.\u201d The schedule should therefore identify reproduction, representation, adaptation, translation, distribution, commercialisation, sublicensing and use in software or documentation where those rights are relevant. It should define the field of use, territory and duration rather than use an undefined promise to transfer \u201call rights everywhere forever\u201d.<\/p>\n The contract should also preserve the employee\u2019s moral rights consistently with French law. Article L121-1<\/a> makes the right attached to the author\u2019s person perpetual, inalienable and imprescriptible. For software, the special rule in Article L121-7<\/a> is more practical for modification and withdrawal, but it does not justify careless attribution or degrading use. Record whether the developer is named in documentation, whether the company may publish under its business name and how material changes will be approved.<\/p>\n The exploitation rights should be explicit. Article L122-6<\/a> identifies reproduction, translation, adaptation, modification and placing copies on the market among the rights attached to software. The founder should ensure that the company can host the code, create backups, modify it, let a cloud provider operate it, license it to customers, grant a foreign parent a licence and transfer the product in an acquisition. If the French company will not own the rights needed by the parent, execute a separate intercompany licence or assignment after confirming the French company\u2019s title.<\/p>\n The source repository is part of the legal control system. It should be created in the name of the company or under an account over which the company has administrative control. Use individual accounts, multi-factor authentication, protected branches, review requirements and a documented offboarding procedure. Preserve the commit history and a periodic export in a controlled archive. The aim is not to convert Git metadata into a contract; the aim is to connect the technical record with the signed employment and IP documents.<\/p>\n The company should also use a clear invention workflow. The employee should know whom to notify, what technical details to include, how to mark a report confidential and how the company will acknowledge receipt. The company should record whether the work is a mission invention, an invention outside the mission but attributable, or another invention. If a patent is considered, preserve the filing date, the inventor identity, the employee notification and the remuneration analysis. Do not promise that a patent will be filed before checking novelty and confidentiality.<\/p>\n Confidentiality is a separate layer of protection. Article L151-1 of the French Commercial Code<\/a> protects a trade secret when information is not generally known or readily accessible, has actual or potential commercial value because it is secret, and is subject to reasonable protective measures. Source code, deployment architecture, security keys and non-public product logic may qualify, but secrecy is not automatic. Access controls, confidentiality clauses, restricted repositories, classification labels and exit interviews help prove the required measures.<\/p>\n An infringement of trade secrets can trigger civil liability under Article L152-1 of the French Commercial Code<\/a>. That remedy does not replace copyright or patent rights. It is valuable when the company needs to protect confidential know-how that is not fully captured by a copyright claim or when the company must show that it acted responsibly before asking a court for relief.<\/p>\n The company should address open-source software with the same discipline. A developer may use a permissive component, a reciprocal licence or code subject to an employer or university policy. Keep a software bill of materials, the licence text, the notices and the approval for any component that could impose source-disclosure or distribution conditions. \u201cThe employee wrote it\u201d does not mean the company can ignore third-party rights. A buyer will usually ask for this record because an undisclosed component can affect the ability to commercialise or close a transaction.<\/p>\n The highest-risk moment is often before the first employment contract. A founder may build a prototype personally, ask a foreign parent\u2019s engineer to contribute, hire a French freelancer for a module and then employ a developer to turn the prototype into a product. Four different legal relationships can create four different chains of title.<\/p>\n Start with a dated background schedule. List the prototype, source repositories, domains, design files, datasets, documentation, patents, trademarks and open-source components that existed before the French employee joined. For each item, state whether the French company receives ownership, an exclusive licence, a non-exclusive licence or no right. If the foreign parent owns the background code, grant the French company the rights it needs to develop, operate, sublicense and sell the product. If the French company will own the new product, define how derivative modules relate to the background code.<\/p>\n For an independent contractor, do not assume the employment rule applies. The contractor is not the employee contemplated by Article L113-9. The company should use a written agreement identifying the deliverables and complying with Article L131-3 for copyright transfers. It should also obtain rights from every subcontractor, confirm the status of pre-existing components and require disclosure of open-source material. Payment of an invoice demonstrates a commercial relationship; it does not, by itself, prove a complete copyright transfer.<\/p>\n The Court\u2019s software decisions reinforce the need for a clean history. In Cass. 1re civ., 15 June 2016, no. 14-29.741<\/a>, the dispute turned on joint authorship and the use of source code without the other author\u2019s consent. The founder should therefore obtain a contribution statement from each person who wrote material code and keep the corresponding agreement. In Cass. crim., 21 November 2012, no. 11-85.867<\/a>, the criminal case did not create a general rule on employee software ownership, but the record included a dispute over software developed by employees and assets attributed to a company. It is a useful warning against allowing a director or founder to register, sell or pledge a company-developed product personally without checking the company\u2019s rights.<\/p>\n For a patentable invention, the evidence must be even more precise. Cass. com., 22 February 2005, no. 02-18.790<\/a> and Cass. com., 22 February 2005, no. 03-11.027<\/a> show why the collective agreement and the individual contract cannot be treated as decorative documents. Cass. soc., 2 June 2010, no. 08-70.138<\/a> illustrates the importance of the invention\u2019s date and the employee\u2019s actual contribution. Cass. com., 12 February 2013, no. 12-12.898<\/a> and Cass. com., 9 December 2014, no. 13-16.559<\/a> make the existence, value and commercial use of the invention relevant to the remuneration discussion. These references concern employee inventions, not an automatic patent right in software; their value for the founder is procedural and evidential.<\/p>\n Keep the following evidence pack in a company-controlled location:<\/p>\n The administrative acronyms should not obscure the ownership issue. INPI means the National Institute of Industrial Property, the French office involved in patents, trademarks and the business formalities system. URSSAF is the body that collects much of the French social-security contributions; its payroll records show the employment relationship but do not prove copyright ownership. BODACC is the Official Bulletin of Civil and Commercial Announcements, where certain corporate and insolvency notices are published; a BODACC notice can help date a public event but does not transfer source-code rights. The greffe is the registry office attached to the competent commercial or judicial court. None of these records replaces the signed IP chain.<\/p>\n Before an investment or sale, prepare a rights matrix rather than a general confirmation. For each software component, identify the current owner, creator, contract, applicable transfer or licence, repository, third-party dependency, pending dispute and required consent. If a French subsidiary owns the product and a foreign parent commercialises it, describe the licence and its scope. If the parent owns the platform and the French company only develops a local module, separate the platform from the module. If the first employee\u2019s work includes a technical invention, show how Article L611-7 was analysed.<\/p>\n The matrix should also identify what the company does not own. A negative entry can be valuable: a founder\u2019s pre-existing library remains licensed, a university component is excluded, a contractor retained a specified background tool, or a personal project was never used in the company\u2019s product. Investors and buyers often accept a bounded exception more readily than an unexplained assertion that the company owns everything.<\/p>\n If a dispute begins, secure the evidence before disabling accounts or rewriting repositories. Preserve a read-only copy of the relevant branches, issue history, instructions, employment records and access logs. Do not delete the employee\u2019s personal files indiscriminately: French employment privacy and evidence rules may limit how an employer searches workplace systems. Ask counsel to define the preservation scope, especially where the code contains personal data, customer data or third-party confidential information.<\/p>\n When the company needs an urgent patent remedy or a dispute over an employee invention, Article L615-17<\/a> identifies the judicial-court route for patent-related civil actions. When the issue is ordinary software exploitation, copyright infringement, contractual transfer or trade-secret misuse, the procedural route and requested remedy may differ. A foreign founder should not send a threat letter using the wrong legal qualification, particularly where the departing employee may claim a statutory invention payment.<\/p>\n The final protection is operational. On the employee\u2019s last day, revoke repository and cloud access, recover devices and keys, confirm the return or deletion of confidential copies, obtain a handover of source code and dependencies, and remind the employee of surviving confidentiality duties. Do not ask the employee to waive rights that French law makes unavailable to waive. Instead, identify the rights the company owns, the rights it has licensed and any remuneration or attribution that remains due.<\/p>\n For a French company\u2019s first employee, the central rule is practical but not unlimited. Under Article L113-9, economic rights in software and its documentation created in the employee\u2019s functions or on the employer\u2019s instructions vest in the employer. That rule is stronger than a generic assumption that employment equals ownership, but narrower than a promise that the company automatically owns every creative or technical asset touched by the employee.<\/p>\n The founder should separate software copyright, other copyright works, confidential know-how, pre-existing assets, contractor contributions and patentable inventions. For a technical invention, Article L611-7 may give the employer the patent right while preserving a right to additional remuneration; other inventions may belong to the employee or be attributable for a just price. The safest chain is created before the first release: name the French employer, define the employee\u2019s functions, list background assets, control the repository, document instructions, operate the invention procedure and preserve evidence.<\/p>\n Need a quick opinion on your case<\/strong><\/p>\n Arrange a telephone consultation within 48 hours with a lawyer from the firm to review your French company\u2019s software ownership, employee contract and cross-border IP chain.<\/p>\n We can identify the documents to secure before a dispute, investment, licensing deal or departure creates an avoidable gap.<\/p>\n Call 06 46 60 58 22<\/a> or use the contact form for the French firm<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":" A practical legal guide for foreign founders: French employee software ownership, copyright, patentable inventions, contracts, repository evidence and cross-border IP protection.<\/p>\n","protected":false},"author":251031309,"featured_media":16573,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_kj_source_type":"","_kj_official_id":"","_kj_official_url":"","_kj_judilibre_id":"","_kj_jur":"","_kj_lieu":"","_kj_chambre":"","_kj_rg":"","_kj_date":"","activitypub_content_warning":"","activitypub_content_visibility":"","activitypub_max_image_attachments":4,"activitypub_interaction_policy_quote":"anyone","activitypub_status":"federated","footnotes":""},"categories":[80314,80313],"tags":[],"class_list":["post-2108823","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-decryptage","category-doing-business-in-france"],"yoast_head":"\nI. How does French law allocate software and invention rights to a first employee?<\/h2>\n
A. What does the French company own automatically when an employee writes code?<\/h3>\n
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B. When does software development become an employee invention with a different compensation rule?<\/h3>\n
II. How should a foreign founder document and protect the French company\u2019s ownership?<\/h2>\n
A. What should the employment contract, repository and IP schedule contain?<\/h3>\n
\n
B. How should the founder preserve proof for contractors, foreign parents, investors and an exit?<\/h3>\n
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Conclusion<\/h2>\n