Originality of a Planning Law Application: When Can a Lawyer Copy a Colleague?

Picture the scene: in Saint-André-les-Vergers, near Troyes, a homeowner challenges the planning permission granted to his neighbour for a house extension. He instructs a lawyer, who drafts an application to the administrative court. Shortly afterwards, another resident of the same neighbourhood, faced with the same project, consults another lawyer. Surprise: the application lodged by this second colleague is identical in every respect to the first. The first lawyer, furious, files a complaint for counterfeiting (copyright infringement). But the Court of Cassation, in a judgment of 16 June 2009, ruled: a legal application, even drafted by a lawyer, is not automatically an original work protectable by copyright. So, what makes a legal text a 'work'? And how should you react if you find yourself in a similar situation? Analysis.

The facts: a story that happens every day

In Saint-André-les-Vergers, a property developer obtains planning permission for a housing estate of 15 individual houses. Several local residents, unhappy with this project which will change the landscape and increase traffic, decide to challenge it. The first, Mr X, owner of an adjoining house, instructs Maître A, a lawyer specialising in planning law. Maître A drafts an application for annulment before the administrative court of Châlons-en-Champagne, relying on the town's local plan (POS), the Planning Code, and standard case law. The application is structured in a standard way: statement of facts, grounds of law, discussion, conclusions.

A few weeks later, another resident, Mr Y, who lives in Romilly-sur-Seine but owns a second home in the same estate, consults another lawyer, Maître B. Without knowing it, Maître B, to save time, reproduces the entirety of Maître A's application, which he found in a legal database. He merely changes the name and address of the applicant. Maître A, alerted by a colleague, discovers the copy and files a criminal complaint for counterfeiting (copyright infringement). The case is brought before the criminal court of Troyes, then on appeal in Reims, and finally before the Court of Cassation.

But what exactly happened? The criminal court acquitted Maître B, holding that the application was not original. The Reims Court of Appeal confirmed, and the Court of Cassation dismissed Maître A's appeal. The debate centred on the originality of the document: can a standard legal document, which merely cites texts and applies them to a factual situation, be considered a work of the mind? The judges said no.

The reasoning of the court — analysed

The Court of Cassation applied Article L. 111-1 of the Intellectual Property Code, which protects 'works of the mind' by copyright, but only if they are original, i.e. they bear the stamp of their author's personality. However, for an application to annul an administrative act, the formalities are very constrained: the Code of Administrative Justice imposes a certain number of mandatory particulars (description of the contested act, statement of facts, grounds, conclusions). In this case, the application reproduced the provisions of the Saint-André-les-Vergers local plan, the articles of the Planning Code, and extracts from legal works such as the JurisClasseur Construction-Urbanisme. Nothing in this accumulation of citations revealed any originality, according to the Court. In other words, the text was merely a technical compilation, without any personal creative input. The Court spoke of 'absence of character of originality likely to reveal the personality of its author'. What few people know is that copyright protects form, not substance. Here, the form was standard, almost stereotypical.

However, note: the Court does not say that a procedural document can never be protected. It merely reminds that originality must be demonstrated. undefined, I have come across cases where particularly inventive submissions, with novel argumentation or original graphic presentation, have been recognised as protectable works. But this is not the general case.

The trial judges (the Court of Appeal) had sovereignly assessed that the disputed application merely 'recalled the provisions of the local plan and those of the Planning Code' and 'reproduced extracts from legal works'. They deduced that it lacked originality. The Court of Cassation validates this reasoning: it is a question of fact, left to the assessment of the trial judges. An interesting point: if the second lawyer had added personal arguments, a different plan, or an in-depth analysis, the result might have been different.

What this changes for you — concretely

This decision has practical implications for several profiles.

• Landlord-owner or occupier: if you challenge a planning permission or planning decision, you need not fear that your lawyer will be sued for using a standard model. Most annulment applications are standardised. This reduces legal costs, because your lawyer can rely on a pre-existing template. However, do not expect your application to be protected by copyright: it may be copied by another litigant.
• Lawyers and legal professionals: if you draft a very personal procedural document, with original argumentation (e.g., a novel demonstration on the interpretation of an article of the Planning Code), you may attempt to protect it. But the risk of seeing your copy sanctioned is low, unless you provide proof of strong originality. In practice, it is better to focus on the quality of the argumentation than on the fear of plagiarism.
• Co-owners: in the context of an appeal against planning permission granted to a developer, if several co-owners act separately, their lawyers may use the same template without issue. This allows costs to be shared, but beware: if the applications are identical, the court may declare them inadmissible for lack of individual interest to sue. In Romilly-sur-Seine, for example, a co-ownership of 12 lots saw its appeal rejected because the applications were exact copies: the judge held that they did not demonstrate a personal prejudice.

Concretely, if you are in this situation, you should know that copyright only protects original creations. A standard application, even well drafted, is not. So you need not worry if your lawyer uses a template; and you cannot prevent another litigant from copying your application. However, if you are a lawyer and wish to protect your work, add a personal touch: a comparative analysis, a case law table, or novel argumentation.

Four tips to avoid this type of dispute

• 1. Before drafting an application, check if a standard model exists: most planning disputes (planning permission, prior declaration) can be handled with proven templates. Use them without fear, but personalise the facts. This will save you time and money.
• 2. If you are a lawyer, keep a record of your original work: keep your drafts, research notes, successive versions. In case of dispute, you can demonstrate that your text has originality (particular plan, novel argument, etc.). Without proof, you risk losing your counterfeiting action.
• 3. For an owner: do not copy an application found online without a lawyer's advice: an application copied word for word may be rejected if the judge considers it not adapted to your situation. Moreover, you could be accused of counterfeiting (even if the chances of success are low, the stress and costs are not worth the risk).
• 4. In case of dispute between lawyers, prefer mediation: the costs of proceedings for a counterfeiting claim are high (count €5,000 to €10,000 in lawyer's fees per lawyer, not including court costs). An amicable discussion between colleagues, or via the Bar president, is often quicker and cheaper.

Further reading: related case law and developments

This decision is part of a broader trend by courts to refuse copyright protection to standard legal documents. Thus, the Court of Cassation has already held that appeal submissions, standard contracts or model clauses are not protectable (Civ. 1re, 13 Nov. 2008, no. 07-15.673). On the other hand, some very original texts, such as a doctoral thesis or a doctrinal article, are. The line is therefore fine. Recent developments show that judges are increasingly demanding on the notion of originality, especially in the digital age where copying is easy. For the future, it is likely that only truly creative works (e.g., argumentation mixing law and economics, or innovative visual presentation) will be protected. In the meantime, lawyers can rest easy: copying a standard application is not an offence. But what does this change exactly for you, the litigant? It means your lawyer can freely draw inspiration from models, which reduces your fees. And if you are tempted to copy an application found on the internet yourself, do so with caution: it is better to consult a professional to adapt it to your case.

Summary and next steps

FAQ - Frequently asked questions:

• Can my lawyer copy a colleague's application without my consent? Yes, because such applications are generally not protected by copyright. He may even use a standard template. This does not affect the validity of your appeal.
• Can I copy an application found on the internet myself to challenge a planning permission? It is risky: the application could be declared inadmissible if it is not adapted to your situation. Moreover, you could be sued for counterfeiting (even if protection is weak, the cost of defence is high). Better to consult a lawyer.
• What are the time limits for suing for counterfeiting of a legal document? The counterfeiting claim is subject to a 5-year limitation period from the discovery of the copy. But in practice, courts are reluctant to convict for copying a standard document.
• How much does a counterfeiting action against a lawyer cost? Count between €3,000 and €15,000 in lawyer's fees, plus court costs (bailiff, expert, etc.). The cost-benefit ratio is often unfavourable, unless the originality is glaring.
• What should I do if I discover that my lawyer has completely copied a colleague's work? You can ask him for explanations. If you believe the quality of your defence is compromised, you can change lawyers. But in law, this does not constitute professional misconduct.

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