Section: New Results

Originality of software works

Most judges have very little, if not none, knowledge on software developement. This results in misconceptions and mistakes regarding the application of copyright/author right (droit d'auteur) in court cases related to software. More generally, the concept of originality is misunderstood. While this criterion is meant in theory to separate works of the mind that are personal to an author (e.g., literary works), from creations of form that cannot, by nature, reflect the personality of their creator (e.g. mathematical tables), it is often used to qualify the degree of similarity between two different works, in the context of plagiarism. Also, the distinction between the realm of programs, that is, works of the mind, and that of algorithms, is not mastered. Algorithms belong to the fonds commun, a French term that has no equivalent in English and might be translated as “common pool”. In order to help judges and lawmakers in understanding these notions, and articulate them, we have proposed a methodology for ruling 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 [22].