Legalis.net reports today (en français) that on 17 October 2012 the Cour de cassation annulled a decision of the cour d’appel of Aix-en-Provence, which appeared to have forgotten the rules of originality for copyright in computer programs. It has to be shown that:
les choix opérés [témoignent] d’un apport intellectuel propre et d’un effort personnalisé de celui qui avait élaboré le logiciel litigieux, seuls de nature à lui conférer le caractère d’une œuvre originale protégée.So, software is protected only if it is the author's own intellectual creation - under the software directive, if not expressly in UK copyright law. France seems to have got it more right than us.
The cour d'appel had held that the software was original because it provided a particular solution to the management of bailiffs - a significant problem, I can confirm, having once acted for a large organisation of bailiffs ... The cour de cassation referred back to its 1986 decision in Pachot, where it had held that the creator of a program had to impress his or her own personality on it: it had to be more than the mere implementation of an automatic, logical process. And that, in all areas of copyright law, must be right - although our law might not say so in so many words, and the required standard of originality might be abysmally low (and falling).
You can read the judgment here, si vous voulez.