A recent ruling on July 20, 2023, by the President of the Paris Judicial Court emphasized a key principle in copyright law: maintenance works on software are not inherently original and thus may not qualify for copyright protection.

The case involved a dispute between a company specializing in computer systems and a maintenance service provider over the ownership of improvements made to a software named Zephyr, as well as the software itself, designed for managing large quarries and industries.

The court's reasoning unfolded in two phases:

1. Presumption of non-originality¹: The President initially asserted that maintenance works on software are generally non-original, hence not automatically eligible for copyright protection.
2. Burden of proving originality: The President further clarified that if a maintainer claims copyright over maintained software due to their contributions, they must demonstrate that these contributions constitute a work of the mind and impress upon the pre-existing software the personality of its developers through free and creative choices.

Non-title presumption in copyright Law

Judges are required to determine if works meet the originality criterion, reflecting the creator's² personality. Thus, copyright does not apply to standard technical services³ or simple operational work⁴.

In this case, the judge affirmed that only truly original works merit protection. Contributions heavily constrained by technical aspects do not qualify.

For the matter at hand, the focus was on application maintenance, primarily dictated by the software being maintained. The President highlighted that maintenance is meant to adapt software within its existing features.

Additionally, the President introduced another criterion for maintenance operations: they are guided by client requests. When a client seeks to evolve their software, this evolution is based on specific needs. Thus, improvements made by the provider, as tools to help the client adjust their software, are not necessarily considered original.

However, the President noted that this doesn't mean maintenance contributions are always devoid of originality.

Proving ownership

Claimants seeking copyright protection must precisely delineate the form they claim protection for⁵.

Following this logic, the President didn't outright dismiss the idea that maintainer contributions could be protected. However, they demanded proof of the originality of these contributions.

The maintainer in this case failed to distinguish between original and non-original contributions, raising questions about whether these contributions were documented.

The court went further, asking the maintainer to prove that their contributions not only imprinted on the software but also transformed the existing software to confer new distinct originality.

Contributions must "imprint on the pre-existing Zephyr software the personality of its developers expressed through free and creative choices."

In summary, a maintainer claiming rights over software due to their interventions must demonstrate that their contributions significantly altered the original nature of the software.

Otherwise, any maintainer could claim rights over software simply for updates or corrections.

Furthermore, if every third-party maintainer could claim rights on the work they maintain, the question arises whether the transformed software is a collaborative or collective work. In both cases, obtaining rights over the entire software is complex without the original rights holder's agreement.

In this instance, although the claimant argued that the software was a collaborative effort, this posed a challenge due to the absence of an agreement with the initial creator, evident from the ongoing dispute.

In conclusion, the July 20 ruling clarifies that third-party application maintenance does not automatically confer rights to the original software on the provider.

For clarity, we recommend:

• explicitly clarifying rights in contracts to prevent disputes.
• carefully documenting all original contributions during the project or maintenance.
• if the maintainer believes their contributions are original, they must discuss this with their client.

Our IT Contracts, Data & Compliance department assists creators and maintainers in all necessary acts for their activities, including maintenance contracts, copyright assignment, and dispute resolution. For any inquiries, please contact us.