Report commits to a reform of the evidence of originality in literary and artistic property

The report submitted on 15 December 15, 2020 to the Superior council for literary and artistic property (CSPLA) envisages a recasting of Article L. 112-2 of the French Intellectual Property Code.

The genesis of this report is based on the observation that proving the originality of a work before the courts has become particularly difficult for the claimant.

For the past fifteen years, the Court of Cassation has required the substantive courts to demonstrate originality individually, i.e. for each of the works for which protection is sought, and not globally.

The report observes as a consequence of this tightening a sometimes insurmountable burden for the applicant who must satisfy the evidentiary obligation. This is all the more true for what the report calls “mass litigation”, a situation from which counterfeiters unfairly benefit. Rights holders are thus turning away from the basis of copyright, which has become too restrictive.

For these reasons, the CSPLA has taken on the task of exploring “avenues for rebalancing”, which would make it possible to avoid a systematic protest related to originality during a dispute, while at the same time making it possible to preserve the debate when it is relevant.

Two leads emerge from the report :

• Firstly, the report is in favour of a change in the case law on the requirement imposed by the Court of Cassation on the substantive courts so that they are less strict with applicants.

• Secondly, the path of legislative reform is considered. This reform would concern Article L. 112-1 of the French Intellectual Property Code. It proposes the following wording:

“The provisions of this code protect the rights of authors on all original intellectual works, whatever their genre, form of expression, merit or purpose.

It is up to the person who disputes the originality of a work to establish that its existence is affected by serious doubt and, in the event of such a justified dispute, it is up to the person claiming rights in the work to identify what characterizes it“.

The condition of originality would therefore be included verbatim, which, according to the report, would make it possible to clarify the state of the law.

Moreover, the second paragraph would place the burden of proof on the defendant to prove that his challenge to originality is well-founded, in other words that there is a genuine doubt as to the originality of the subject-matter of the dispute.

By UGGC Law Firm’s IP/IT team.

Source: CSPLA