Outline of scientific paper insufficient to confer originality

The notion of originality is key to copyright law. Our readers might be well aware of this [IPKat here, here or here]. It is therefore interesting and useful to know what can constitute a free and creative choice for each type of work that may be created. This time, this Kat found a recent decision issued by the Tribunal judiciaire (TJ) of Rennes concerning the alleged infringement of copyright in a scientific paper.

Facts

Ms J, a university research professor, has published numerous scientific articles. In 2016, she co-authored an article entitled “Imagerie multimodale: apport de la multi fonctionnalité en nano médecine”, published in the CEA's Observatoire des micro et nanotechnologies. In 2019, she noticed that Mr Y, Ms T and Ms D had published a paper entitled “Lumiphore and magnetic multicolour nano assemblies for dual mode and fluorescence imaging”. On 4 May 2021, believing that this publication reproduced the outline and content of her 2016 article, Ms J sued Mr Y, Ms T and Ms D for copyright infringement before the Tribunal Judiciaire of Rennes.

A scientific Kat

Analysis

In order to rule on this dispute, the Court first set out the legislative framework applicable to the case. Relying explicitly on article L. 112-2 1° of the Intellectual Property Code (CPI), the Court recalled that “books, brochures and other literary, artistic and scientific writings are considered to be intellectual works within the meaning of this Code”. The TJ added that “in order for a work of the mind to be eligible for copyright protection, it must be original, i.e. a creation unique to its author(s), in line with the case law of the CJEU”.

 
On this point, there is nothing surprising. Copyright protection presupposes that the allegedly infringed work is sufficiently original (i.e., Funke Medien, C-469/17, at [23]). What is more, the work at the centre of this dispute is similar to scientific text. Its protection is therefore explicitly provided for by the aforementioned article. For all intents and purposes, this provision sets forth a non-exhaustive list of the types of work that can be qualified as works of the mind [IPKat here].

Such a demonstration rests on the person who relies on it, i.e. the author of the work, as the Court explicitly pointed out. This is in line with well-established case law [IPKat on this point here, here and here].

Noting that the allegedly infringing work was a collaborative work, a qualification that is not disputed, the TJ recalled that its “originality is assessed at the level of its entirety, regardless of the respective contributions”. It is therefore of little importance to find out what the plaintiff actually created in order to assess the originality thereof.

In the present case, the Court rejected the plaintiff's arguments, stating that “this plan organises the expression of a prospective scientific opinion based on a critical observation of the current state of knowledge in the field of nanomedicine. This type of plan could have been followed by any other researcher". Indeed, the researcher felt that the originality of her work did lay as much in the plan she followed as in the subject she dealt with, all of which reflected “her multiple skills in photo-physics and molecular organic materials”.

 
Given the characterisation of originality provided, it is not surprising that the Court ruled out any originality. Contrary to what she maintained, the outline of Ms J's paper did not distinguish itself from the comparative method, a classic method in scientific fields.

Furthermore, it is reassuring to note that the TJ rejected the arguments relating to the plaintiff's merit. Merit is irrelevant in assessing the originality of a work [IPKat here]. In this respect, Ms J's “extensive and specific knowledge in various scientific fields” should not be taken into account when assessing the eligibility of the outline of her article for copyright protection.

In the end, Ms J's action for infringement was dismissed for failure to demonstrate the originality of her work.

On a practical level, this judgment can serve as a warning to those who may consider bringing an action for copyright infringement. Care must be taken to demonstrate the originality of the work in question. It is important to develop the creative choices and not be content with a lapidary or even incomplete enumeration. This is all the more important given the ambivalence of French courts in assessing the originality of works. As a reminder, some courts prefer a more objective or more subjective demonstration, while others a mix of the two.