Conex pirated by a competitor !

Since its creation by Alban GRUSON in 1985, CONEX has developed and commercialised automatic processing software, including a version of customs tariff (1), Sélectarif, designed in 1996. With the seal of confidence in the form of a licence granted by the World Customs Organisation (WCO) on their database, the CONEX tool structures the information supplied by public administrations. Sélectarif is updated online via a Web site owned by CONEX, with the domain name tarif-douanier.com.

In 2002, the Lille-based company – CONEX’s head office is in Rumegies, near Lille – understandably dismayed, noticed that its competitor, ELIT GROUP, then known by the name TRACING SERVER, was offering a kind of clone of Sélectarif on its site tarifdouanier.com (written without a hyphen). It turned out to be a copy of the software module developed by CONEX, the same presentation, the same CONEX in-house abbreviations (the judges even noticed the same typing mistakes in both applications!). The copier is caught red-handed…

Immediately, Alban GRUSON has a statement drawn up by the Programme Protection Agency – APP (2). “ It wasn’t about aggressively attacking this competitor,” Alban GRUSON later reflected with a sense of fair play, “simply a question of protecting our market.”

“This company develops software in direct competition with ours; it needed an automatic customs tariff. Copying was the quickest solution…”
On 15 October 2004, the commercial court found ELIT-TRACING SERVER guilty of counterfeiting and unfair competition. The counterfeiter lodged an appeal. In February 2006, the Court of Appeal in Paris confirmed the initial decision: for the judges, ELIT-TRACING SERVER had well and truly violated the copyrights of CONEX. As a result, the copier is convicted of counterfeiting. Going beyond the facts, it is interesting to analyse the magistrates’ reasoning.

1. According to the official definition, “the Tariff description of goods is the designation items are assigned by the Common Customs Tariff, in accordance with article 28 of the National Customs Code. It corresponds to a tariff line specifically indicating the goods in question. The establishment of this description, called goods classification, is an extremely important operation. It enables the fixing of standards that are then applied to exportation and registering operations for external trade statistics.”

2. Since its creation in 1982, the “Agence pour la Protection des Programmes – APP” ( Programme Protection Agency) is dedicated to elaborating and improving the legal framework for numeric works. Active internationally, it is recognised as a Non-Governmental Organisation by the European Union, the WTO, the OECD and the WIPO. 249 rue de Crimée, 75019 Paris. Tel: 01 40 35 03 03, http://app.legalis.net/

How do we protect software programmes? This “collection of computerised elements that allows a task or function to be carried out” (3) is not in itself an invention, and is therefore not “patentable”. Consequently, the Intellectual Property Code (IPC) confers copyright status on software. In the manner in which works of art, to be specific, are considered as “intellectual works”, so too is software. An intellectual work also infers moral and succession laws for its author, on the condition that the aforementioned work is…original. Can Sélectarif, an intellectual software work, be considered as original? Yes, according to the judges, for whom originality stems from “the imprint of the author’s personality”.
This case reflects French jurisprudential relationships.

In the case of software, the Cour de Cassation (French Supreme Court of Appeal)’s legal precedent views the imprint of the author’s personality. This personality is the outcome of “personal effort going beyond the simple implementation of an automatic and restrictive logic.” (4) For the Commercial Court of Appeal, Sélectarif is not the result of simple logic: its individual constituent elements are banal, but combined, they give the software “its own character”. Therefore it possesses “the imprint of the author’s personality”, meriting copyright protection. Incopying it (even partially), CONEX’s competitor violated this right.

(3) Definition taken from Itrmanager.com, on-line magazine for computer professionals.
(4) Cour de Cassation (French Supreme Court of Appeal), 7 March 1986, cited in Economica, Le droit d’auteur (copyright), Paris, 2005.

In the case of CONEX versus ELIT / TRACING SERVER, several other aspects of the law helped define protection of software: in this way, the judges were able to avoid a very technical analysis of “source codes”, or in other words the lines of computer language used by programmers to write a programme. They postulated the “entitlement” of copyright in insisting on presumption of authorship for the company commercialising the software.

Finally, another point of law was dismissed: database protection? The judges concluded that, from the moment the Sélectarif-structured data is published, their extradition is not an act of “parasitism”. And what about the domain name, tarif-douanier.com, “hi-jacked” in the form tarifdouanier.com? According to product brand law, insofar as there was a great risk of confusion for the consumer, the Tribunal sanctioned ELIT / TRACING SERVER for “unfair competition”.

The convicted company wasn’t selling its Sélectarif- “inspired” version of customs tariff, but offering it as a free “commercial gesture”, making the competition all the more “unfair”. The free nature of the copy made it twice as suspicious. For Alban GRUSON, CEO of CONEX, offering this kind of product free of charge takes away the sense of “responsibility” and creates a real “legal vacuum”.

“My data is false or incomplete”, complains a customer. “Don’t complain”, responds the sales rep, “you didn’t pay anything to get it!” We can imagine the potentially dramatic consequences of such a strange logic. “A free product of this kind would never last long,” added CONEX’s creator. “It is impossible to maintain a product at zero productivity, except if there is a sale linked to it.” [In such a case, the tariff becomes a kind of bonus for the purchase of specific software.]

The case of CONEX versus ELIT GROUP concludes at a time when parliamentarians are debating copyright in general. Adopted at the last minute during the final session of parliament, the DADVS – copyright law and related intellectual property rights– is the transcription into French Law of the 22 May 2001 European directive: it recognises piracy – notably of numeric works, like music – and sentences wrong-doers (simple downloading for personal use will be sanctioned with a fine of 38 €, but for more serious cases it could means up to 3 years in prison and a 300 000€ fine). Far from the interest of the media, ELIT GROUP’s conviction for piracy marks a point in giving value to authentic software creation: the success of CONEX products proves that quality has a price. A word to the wise is enough…!

CONTACT Agence C3M - Relations presse
Tél. : + 33 (0)1 47 34 01 15
Suzana Taunais-Biseul, suzana@agence-C3M.com
Michelle Amiard, michelle.amiard@agence-C3M.com
www .agence-C3M.Com - 2 passage Du Guesclin 75015 Paris
tel +33 (0)1 47 34 01 15 - fax +33 (0)1 47 34 03