Originality

Originality is the condition of access to copyright protection. The French Intellectual Property Code does not define it and mentions it expressly only for the title of a work, in Article L. 112-4. French case law conceives it as the imprint of the author’s personality, and the Court of Justice of the European Union as the author’s own intellectual creation. It differs from novelty, an objective notion belonging to industrial property.

The French and the European conceptions

The French tradition takes a subjective approach: a work of the mind is original when it bears the mark of its author’s personality, which shows in arbitrary choices in the composition, expression or combination of elements. The CJEU, interpreting the harmonisation directives, holds that a work is protected when it constitutes its author’s own intellectual creation, in which the author has expressed creative abilities by making free and creative choices. The two formulas are now treated as equivalent by the French courts, which frequently use them in combination. For software, case law has adapted the test by looking for an intellectual contribution and a personalised effort going beyond the mere implementation of an automatic and constraining logic.

The boundaries of originality

A form dictated by technical considerations, by rules or by other constraints leaving no room for creative freedom is not original. Ideas, information, the functionalities of software, formats, methods and know-how likewise fall outside copyright. Banality excludes protection, but novelty is not required: a work may be original while reusing known elements, provided their combination or treatment reveals personal choices. A derivative work, such as a translation or an adaptation, may be original in itself. Photography illustrates this nuanced assessment, as originality may lie in the staging, framing, angle, lighting or processing of the image, and not in the mere pressing of the shutter.

Proving originality in litigation

Originality is not presumed. A party alleging infringement must identify the work claimed and describe the features which, in its view, make it original, failing which the claim is dismissed. The defendant responds by producing prior works, not to establish a lack of novelty, but to show that the form claimed is banal or dictated by function. The assessment is made work by work, including where a collection or a range is at issue, and falls within the unfettered discretion of the trial courts, subject to review of their reasoning by the Court of Cassation.

Key points

Originality, rather than novelty or merit, opens the door to copyright protection, and it is defined by free and creative choices bearing the author’s imprint. It must be proved and is never presumed. Before any formal notice or writ, a precise description of the original features should be drawn up for each work claimed, anticipating the prior works the opponent will rely on to plead banality.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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