Copyright protection over a portal

Published onNovember 2018

That’s right! This is France and France is known worldwide (at least we French people like to think so) for its contributions to the arts, its intellectual creations, its original productions. Yet we are talking about copyright protection claimed over a portal, a front gate.

In 2012, a portal manufacturer filed a lawsuit for copyright infringement claiming another company had a portal made based upon its plans and drawings, after declining a formal quotation. According to the claimant, the design of the portal was original and the other company had replicated each and every feature of said design.

Whereas the first instance court found the defendant guilty of infringing the manufacturer’s rights, in 2016, the court of appeals decided otherwise. For the appeal judges, although the gate did show specific characteristics, it was considered that most of the features were common and, as a consequence, that the portal did not deserve copyright protection.

The Cour de cassation, the highest civil court in France, annulled the judgment of the court of appeals for breaking Article L. 112-1 of the French Intellectual Property Code which states that “The provisions of this Code shall protect the rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose”. For the High Court, the court of appeals erred in deciding the portal should not be protected by copyright by examining the characteristics of the portal separately whereas it should have examined the combination of said characteristics.

In other words, the originality of an author’s work must be examined as a whole, by taking into account all the elements of the work and their combination.

But it seems relatively clear that the Cour de cassation criticised the reasons of the court of appeals much more than the solution of the judgment itself. Since the decision of the court of appeals is annulled, the case must go back before another court of appeals, which means the claimant will have another chance at obtaining copyright protection over the design of its front gate. However, it is our prediction that the second court of appeals may very well refuse such copyright protection as well.

There was a time when the French courts had a very low threshold for granting copyright protection. But the French courts are now more and more reluctant to recognize the originality of designs in industrial objects. Unless claimants can really prove the originality of their designs, which requires in-depth analysis and description of the work, it has now become very difficult to have copyright granted. And there is always the possibility for defendants to argue against the originality especially by evidencing anticipating prior art.

That’s why this case is another example of the usefulness of filing industrial design applications. Validity rules of registered industrial designs are different from those of copyright protection and there are many industries or fields of business where they can prove much more relevant.

© INSCRIPTA