The originality of the software before the pretrial judge

CA Versailles, 1st ch. 1st sect., 25 May 2021, n° 20/03501.

In a software infringement case, the judgment confirms the order of the pre-trial judge before whom the validity of the summons for lack of precision was contested.

Interest of the judgment

It is interesting in the context of the reform of civil procedure attributing new powers to the pretrial judge (article 789 of the code of civil procedure) because it recalls the type of question that can be debated before him, in terms of computer law.

Facts

In this case, the judge underlines the contours of the copyright of the software, which does not concern the graphic interface, or the functionality implemented (directive 91/250/EEC of the Council, of May 14, 1991, concerning the legal protection of computer programs and Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society) .

“Only the source code made it possible to know the precise choices of the programmer who presided over the formatting which constitutes the seat of the originality of a software. »

The judge indicates that he does not have to rule on the originality of the software or to assess the sufficiency of the explanation of the subject of the request, but sanctions the lack of explanation of the subject of the request.

"Failing to explain the original characteristics claimed, to comment on the source code which is the seat of his rights, to produce any organization chart, he deduced that the assignment did not meet the requirements of article 56, 2°, of the code of civil procedure and had to be annulled since, in addition, this deficiency caused a grievance to the company Sélectour Entreprise, which was deprived of developing a useful response and therefore of defending itself effectively. »

It is indeed up to the plaintiff to indicate the original characteristic of the work, the one that merits the action for infringement (CA Paris, Pôle 5 – ch. 1, May 7, 2019, No. 16/11002 , CA Douai, ch. 1 sect. 2, 5 Apr. 2018, n° 16/04545).

Update May 9, 2022

“it does not follow from any text that the originality of works eligible for protection under copyright is a condition of admissibility of an action for infringement. If the demonstration of such originality is indeed required, it is a condition of the merits of the action and constitutes a means of defense on the merits.
Court of Justice of Marseille, 1st ch. – cabin. 1, incident order of May 3, 2022
Sweet & Salty / Gaillet & Azur Technology group

See as well :

Breach of software license is not infringement

Preliminary question: is the licensee of software an infringer or simply a faulty co-contractor?