Cour de Cassation, 17 October 2012, 11-21641, Codix
There is nothing more subjective, and
often arbitrary and unfair, than the notion on which copyright protection is
based: originality.
Under French law, the Intellectual
Property Code protects “the rights of authors in all works of the mind,
whatever their kind, form of expression, merit or purpose” (article L.112-1),
without giving a definition of originality.
French case law has defined originality
as the expression of the personality of the author. European case law validated
the French conception of originality, in particular in Infopaq and in Painer
(para. 88: "As stated in recital 17 in the preamble to Directive 93/98, an
intellectual creation is an author’s own if it reflects the author’s
personality").
Where computer programs
are concerned, it is however more difficult to focus on the personality of the
author, and the French Supreme Court (‘Cour de Cassation’) ruled that
originality results from the “author's intellectual contribution” (Pachot)
or from the “author's individual contribution” (Isermatic
France). This reference to the “intellectual contribution”, instead of the “author’s
personality”, reflects a certain shift towards the criterion of novelty, which
is used in industrial property law.
In a judgement rendered on 17 October 2012, the French Supreme Court reaffirms this
definition and notes that the usefulness of a computer program is not
sufficient to characterise the originality of the program.
The computer program
concerned in the case was developed to assist French bailiffs in managing their
offices. In France, bailiffs ("huissiers") are public officials who,
in particular, provide an auxiliary service to the judicial system. The
software publisher brought a copyright infringement case against former clients
who had continued to use the computer program after the termination of the
license agreement. The Court of Appeal of Aix-en-Provence condemned the
publisher's clients for copyright infringement. In order to rule that the
computer program is original, it merely stated that the program “provides a
specific solution to the management of bailiffs' offices”.
The French Supreme Court
annulled the judgment. Indeed, the Supreme Court considered that the
Aix-en-Provence Court of Appeal breached the law by ruling that the computer
program is original, “without explaining why the choices made provided evidence
of a specific intellectual contribution and an individual effort by the person
who developed the program under litigation, these elements being the only
criteria that characterise an original work protected, as such, by copyright”.
This ruling therefore
asserts that the usefulness of a computer program cannot be used as a criterion
to determine whether a program is original. The French Supreme Court is in line
with the European legislation, which provides in article 1 of the directive
on computer programs that “A computer program shall be protected if it is
original in the sense that it is the author's own intellectual creation. No
other criteria shall be applied to determine its eligibility for protection”.
But of course, this does not mean that a useful computer program
will not be protected by copyright… This case will now be rejudged by the Court
of Appeal of Montpellier, which will have to decide whether the program is
original or not, using the classic criteria set out by the Supreme Court: the
personal intellectual contribution and the individual effort of the author.
By Brad Spitz, YS Avocats
