Evidence of the date of creation

Evidence of the date of creation is the body of means by which an author establishes when his or her work existed in its protectable form, so as to assert its priority against a third party. Copyright arises from the mere fact of creation (Article L. 111-1 of the French Intellectual Property Code) and a work is deemed created, independently of any disclosure, by the mere fact of the realisation, even if incomplete, of the author’s conception (Article L. 111-2 IPC). No formality is a condition of protection, so that evidence of the date is unrestricted, but the burden lies on the party relying on it.

What is at stake

The question arises mainly in two situations. In infringement litigation, the defendant disputes authorship or relies on its own independent creation, and the claimant must then establish that its work is earlier. In contractual relations, a creator who presents a project to a partner or a client wishes to be able to demonstrate, in the event of appropriation, that he or she was its author before the communication. Evidence of the date combines with the presumption of ownership, which benefits the person under whose name the work is disclosed, but does not operate for a creation that is still confidential.

Means of evidence

Evidence is unrestricted and the court has full discretion to assess the probative value of the material produced. The usual means include the Soleau envelope filed with INPI, which confers a certain date on its contents for five years, renewable once, deposit with a notary or a judicial officer, deposit with an authors’ society or a private deposit body, legal deposit for published works, and electronic time-stamping, whether qualified within the meaning of the eIDAS Regulation or carried out by recording a hash on a blockchain. Internal material, such as working files with their metadata, emails, invoices or dated publications, is admissible but of variable weight, as it emanates from the author himself or herself. Sending a registered letter to oneself is fragile, as the contents may be disputed.

The scope of the evidence and its limits

None of these methods confers a right or proves authorship. They establish only that a given content existed on a given date in the depositor’s hands, which leaves entirely open the question of originality and that of ownership, in particular where the creation was made in collaboration or under an employment contract. The deposit must therefore cover the precise form of the work, and not a summary description, and be renewed at each significant development. In litigation, the certain date also makes it possible to rule out the theory of coincidental creation, since the court may infer copying from priority combined with resemblance and access to the work.

Key points

Copyright arises without formality, but it is for the author to prove the date of creation when it is disputed. The Soleau envelope, deposit with a public officer or an authors’ society, legal deposit and electronic time-stamping provide a certain date without conferring any right. The completed form of the work should be dated before any communication to a third party, the deposit renewed at each major version and the working files kept, as they corroborate the creative process.

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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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