Originality in software law: Belgian doctrine and jurisprudence remain divided

Legal context: Article 1.3 of the Software Directive stipulates that ‘acomputer program shall be protected if it is original in thesense that it is the author's own intellectual creation’.The same condition is formulated in Article 2, part 1 of theBelgian Software Act. Key points: Belgian doctrine and jurisprudence remain divided regardingthe question whether the romantic (continental European) originalitycriterion applies so that a computer program should bear thepersonal mark of the author, or whether a lower (Anglo-Saxon)threshold level is applicable. This threshold means that a computerprogram is already protected the moment it is not a copy ofanother program. The rulings of the Ghent Court of Appeal of13 April 2006 and the Antwerp Court of Appeal of 19 December2005 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 EuropeanCourt of Justice on this matter.     

Parody exception again denied in Belgium

The Antwerp Court of Appeal confirms the tendency in Belgianjurisprudence to be very cautious in its application of theparody exception to copyright infringement. The alleged ‘Miffy’parody on the cover of the magazine Deng is, according to thecourt, too slavish a copy of the original, and thus in itselfinsufficiently original. Moreover the moral rights of artistDick Bruna were infringed. A freedom of expression appeal wasalso rejected, this fundamental right being already encapsulatedin the existing exceptions to copyright.