L'originalité des œuvres logicielles

Abstract : In many court cases related to software, judges, before any thorough examination of the facts, perform a preliminary test of originality of the considered software. Even more, the lack of provision, by the parties, of elements asserting positively the originality of the software is a reason for some judges to reject automatically the request. This practice is questionable in several respects. Firstly, it leads to reversing the burden of the proof with respect to the rule and practice in fields such as, for instance, literary and artistic works, while the interpreter of the law shall not distinguish where law does not. Secondly, this test is often performed wrongly, by studying the features of the software instead of considering the latter as a creation of form. This leads one to adjudicate with respect to criteria of novelty, inventive step or merit, which are ineffective and contrary to the law. Thirdly, even when it is rightly performed, this test does not yield any relevant information because, in terms of software works as well as of litterary works, originality will always be present, even in the case of plagiarism. In order to expose these facts, we match the notions of originality, novelty and common pool in the field of litterary and artistic works, with which legal experts are more familiar, and in the domain of software works. In both cases, we show that originality is not a relevant criterion for adjudicating, and we propose an alternate analysis methodology for software disputes. This methodology is solely based on the study of similarities in software code, since author right exclusively pertains to the level of the form.
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François Pellegrini. L'originalité des œuvres logicielles. Revue internationale du droit d'auteur, Revue internationale du droit d'auteur,, 2017, pp.31. ⟨https://www.la-rida.com/fr/article-rida/3382⟩. ⟨hal-01557673⟩

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