In the course of its business, a company often publishes a website to present its services online. When certain conditions are met, this website may be protected by copyright.
Do you want to protect your website and prevent your competitors from appropriating your intellectual creation? The lawyers at Goldwin explain how to protect your website.
First of all, your website must be an intellectual work within the meaning of the Intellectual Property Code(A). Next, it is necessary to establish the original nature of your website(B).
A. Application of the concept of “intellectual work” to websites
Although there is no definition of an intellectual work in the Intellectual Property Code, article L.111-1 paragraph1 of the Code states that :
” The author of a work of the mind enjoys an exclusive intangible property right in this work, enforceable against all, by the sole fact of its creation”.
As the holder of an exclusive intangible property right enforceable against all, the author of an intellectual work may oppose the reproduction, representation or disclosure of his work.
But what intellectual creations are included within the concept of intellectual work?
The nature of the works included in this list is very varied. For example, a book, a piece of software or a speech are all intellectual works within the meaning of the Intellectual Property Code.
A fortiori, a website is likely to be considered an intellectual work within the meaning of the Intellectual Property Code. However, for a website to be considered a work of the mind within the meaning of the Intellectual Property Code, it must be marked by the intellectual contribution of its author.
In other words, for a website to benefit from copyright protection, it must reflect the personality of its author.
B. The application of the concept of originality to that of a website
Case law has clarified the criteria for a website to be considered a work protectable by copyright.
For an intellectual creation to be considered a work of the mind, it must be original. In other words, it must reflect the personality of its author, which is the case if the author was able to express his or her creative abilities when creating the work.
However, the courts are often reluctant to recognise that a website is original.
In a decision handed down on 4 June 2015, the Marseille Regional Court ruled that a website is an intellectual work and that, as a result, the publisher of the website was entitled to bring an infringement action against a competitor that had used the website’s visualswithout any authorisation from the publisher.
However, the Paris Tribunal de Grande Instance refused to grant copyright protection to a website on the grounds that the evidence provided in support of such an allegation was insufficient to demonstrate the original nature of the site. More specifically, the judges noted that:
” The choice of the colours black, red and grey is not the result of aesthetic research or a personalised effort, especially as the use of the colours red and black because of the contrast created by the combination of opposite colours is commonplace “.
It follows that a website may be protected by copyright provided that its publisher succeeds in establishing its original character. This is what the Paris and Rennes Courts of Appeal have ruled.
To achieve such a result, the website’s creator must choose a mode of expression that is unique to him and that is therefore necessarily distinct from the choice that another author would have made.
For more information on the application of copyright to the website you have created in the course of your business, please contact our team of lawyers.
