Journal Article

Originality in software law: Belgian doctrine and jurisprudence remain divided

Joris Deene

in Journal of Intellectual Property Law & Practice

Volume 2, issue 10, pages 692-698
Published in print October 2007 | ISSN: 1747-1532
Published online August 2007 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpm146
Originality in software law: Belgian doctrine and jurisprudence remain divided

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Legal context

Article 1.3 of the Software Directive stipulates that ‘a computer program shall be protected if it is original in the sense that it is the author's own intellectual creation’. The same condition is formulated in Article 2, part 1 of the Belgian Software Act.

Key points

Belgian doctrine and jurisprudence remain divided regarding the question whether the romantic (continental European) originality criterion applies so that a computer program should bear the personal mark of the author, or whether a lower (Anglo-Saxon) threshold level is applicable. This threshold means that a computer program is already protected the moment it is not a copy of another program. The rulings of the Ghent Court of Appeal of 13 April 2006 and the Antwerp Court of Appeal of 19 December 2005 reflect this division.

Practical significance

There can be no doubt that legal security is under serious threat, both from the developers of software and from potential infringers. The time is right to put a preliminary question to the European Court of Justice on this matter.

Keywords: Much has already been written about European legal doctrine concerning how the originality criterion in software law should be interpreted. Some authors argue that this originality requirement corresponds in content to the originality requirement applied in copyright and a program is thus only protected when it bears the mark of the personality of the author. Others argue that it is sufficient for a program to be protectable the moment it is not a copy of another program.; The rulings of the Ghent Court of Appeal of 13 April 2006 and the Antwerp Court of Appeal of 19 December 2005 reflect this division in Belgian jurisprudence.; In this article, the author rejects those two possible interpretations and chooses the American Feist doctrine as the only correct interpretation of the originality concept, referring to the Report from the European Commission on the implementation and effects of the Software Directive in 2000.

Journal Article.  5435 words. 

Subjects: Arbitration ; Intellectual Property Law

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