I. Evidence at the heart of the assessment of originality (European and comparative case law)
But this is where our era changes everything. We no longer live in a “slow” world, where creation followed rare, tangible steps that were easily visible or recognisable. We have entered a world of flux, versions, iterations, digital files, constant revisions, collaborative exchanges, and production amplified by digital tools and, now, by artificial intelligence. In this universe, works circulate quickly, transform quickly, are challenged quickly, and are copied quickly. And the faster the circulation accelerates, the earlier the evidence must be prepared. Because evidence gathered after the fact is not very convincing. Evidence of an event reconstructed after the fact never carries the same weight as a record captured at the very moment the event occurred. One can always explain, recount, reconstruct, organise files, and produce a narrative. But a narrative reconstructed after a dispute has arisen inevitably raises doubts. It gives the impression that the evidence was prepared for the sake of the case. Conversely, evidence gathered as events unfold—even before a dispute arises—is simply the natural record of actual activity. This distinction aligns with a classic distinction in the field of evidence between spontaneous evidence and fabricated evidence. The former, gathered independently of any dispute, benefits from a presumption of sincerity. The latter, crafted with litigation in mind, is necessarily suspected of opportunism. Iterative timestamping specifically allows the evidence to shift from the latter category to the former, conferring upon it a contemporary rather than instrumental character. This approach finds particular resonance in the Brompton decision, in which the CJEU reiterates that it is incumbent upon the court to take into account all relevant elements as they existed at the time the object was created, regardless of external factors arising after its creation: “[…] it is for the referring court to take into account all the relevant factors of the case at hand, as they existed at the time the object was designed, irrespective of factors external to and subsequent to the creation of the product” (para. 35).
This requirement implies that originality cannot be deduced solely from the final result, but must be assessed based on the conditions of its creation. In this sense, creation is not a single point, but a trajectory. Evidence of this trajectory then becomes crucial: it allows us to situate the work within the context of its creation and to identify the moments when alternatives existed and when choices were actually made.
This is precisely why time-stamping intellectual property has become so crucial today. It is not merely a matter of dating a document or mechanically filing a file. It is about legally documenting the creative process. At every significant stage, timestamping leaves a record. It captures the moment when a version exists, when a decision is made, when a structure takes shape, when a creative direction is chosen, or when a developmental milestone is reached. It does not replace the creative process, but it captures its chronology. It enriches the creative journal by making the author’s journey visible.
This is particularly true in today’s world, where the question of human originality becomes more difficult to establish when artificial intelligence is involved in the process. AI does not eliminate human creation but makes it more open to question if it is not properly documented. More precisely, it requires a clearer demonstration of where human choices come into play. Evidence of effort, time spent, energy expended, or resources committed is not, in and of itself, sufficient to establish originality. The law does not protect a work under copyright simply because it was costly, time-consuming, or involved a great deal of work. A creation is not original simply because it was difficult to produce. It is original because it expresses free and creative choices, because it conveys something personal, and because it demonstrates a distinctive way of organising, selecting, arranging, constructing, or stylising.
Moreover, the use of artificial intelligence introduces a risk of diluting accountability. When multiple sources, models, or algorithmic contributions are involved, the question is no longer simply whether a work is original, but whether that originality can be attributed with sufficient certainty to a specific human intervention. Timestamping thus makes it possible not only to prove prior creation but also to reconstruct a chain of accountability.
This requirement is not new. Since the Infopaq ruling (CJEU, 2009), protection has been based on the expression of the author’s own intellectual creation—that is, on free and creative choices. This approach was confirmed, in particular, in the Painer (CJEU, 2011) ruling, in which the Court identified these choices in concrete elements such as framing or composition, and in the Football Dataco case (CJEU, 2012), which definitively ruled out effort or investment as criteria for originality. In that ruling, the Court reiterated that “the originality requirement is met when, through the selection or arrangement of the data it contains, the author expresses his or her creative ability in an original manner by making free and creative choices” (para. 38).
This view is now widely shared among Member States. In France, originality is defined as the imprint of the author’s personality (Cass. 1st Civ., November 13, 2008), while case law recognises, particularly in the field of software, the existence of a distinct intellectual contribution (Cass. 1st Civ., March 7, 1986, Pachot). In Germany, the Federal Court (BGH, Geburtstagszug, 2013) emphasises the existence of individual creative choices. In the Netherlands, case law requires a distinct original character and a personal imprint of the author (Endstra tapes, Hoge Raad, 2008). Similarly, Italian case law consistently holds that protection requires an “apporto creativo personale,” that is, an original intellectual contribution of one’s own, even if minimal (Cass., Civ. No. 1107/2023). In Spain, the Tribunal Supremo also holds that originality requires the expression of the author’s personality through free and creative choices, in an approach now aligned with the case law of the CJEU (TS, Oct. 26, 1992; see also Supreme Court, April 3, 2012, No. 172/2012).
This convergence is all the more notable because it is also observed in jurisdictions where case law is less accessible or receives less media coverage, which attests to a genuine and effective—rather than merely theoretical—harmonisation of the originality criterion within the European Union. Thus, in Romania, the courts apply the criterion of “original intellectual creation” as enshrined in Law No. 8/1996 and interpreted in light of European case law. In Greece, the courts, based on Law 2121/1993, also require the existence of a creative contribution resulting from free and personal choices. Similarly, in Bulgaria and Slovakia, national courts hold—in accordance with domestic laws and the direct influence of the CJEU—that protection requires a creative intellectual activity attributable to the author.
II. Iterative Timestamping as a structuring evidentiary tool
In this context, the issue of evidence becomes central. It is necessary to demonstrate that certain choices were made. This is precisely where iterative timestamping proves invaluable, as it makes it possible to document, step by step, the creative decisions that legally establish originality. By successively documenting the stages of creation, it makes these choices visible, places them within a chronological sequence, and demonstrates that they are neither accidental nor purely technical, but rather the result of a structuring human intervention. It also highlights the degree of freedom enjoyed by the creator, for there can be no creative choices without freedom. Furthermore, while originality is understood as the imprint of the author’s personality (France, Court of Cassation, 1st Civil Chamber, Jan. 22, 2009), it is evidence that sheds light on that imprint.
Thus, even if the effort, time, and resources are insufficient to establish originality, their inclusion in a chain of time-stamped decisions helps to highlight the human expression captured in these choices, which are, in turn, legally determinative. Time-stamping, when used iteratively, makes it possible both to prove that something was done and to demonstrate how it was done—and, above all, by whom—by highlighting the sequence of creative decisions.
Beyond mere documents, what timestamping captures as it unfolds are moments of creation. They are the milestones of a thought in motion. They are the visible traces of a decision, a sacrifice, a selection, a combination, a rewrite, a reframing, a restructuring. Taken in isolation, these steps do not always reveal the full extent of originality. But together, they form a body of evidence. And this body of evidence is decisive. It not only proves the existence of the choices and events that marked the creative process, but also gradually reveals the author’s personal expression.
From this perspective, iterative timestamping becomes a particularly powerful tool in light of case law requirements. Where a judge seeks concrete evidence of free and creative choices, the accumulation of timestamped records makes it possible to substantiate those choices. It transforms an invisible process into a legible sequence. It allows one to move from the abstract assertion: “I created,” to a structured demonstration: “Here are the decisions I made, at such-and-such a time, moving in such-and-such a direction.” It thus contributes to the body of evidence capable of establishing originality.
This body of evidence follows a well-established standard of proof, according to which no single piece of evidence is necessarily decisive, but their convergence leads to a conviction. Iterative timestamping does not constitute absolute proof of originality; rather, it establishes its plausibility by multiplying the factual points of reference.
In other words, timestamping is a foundational form of evidence. It helps build the credibility of the creative narrative by lending weight to the assertion that an author did not simply arrive at a result, but truly shaped it. In a world of assisted, iterative, algorithmic creation, this distinction becomes fundamental. It is no longer just the final result that matters, but the ability to trace its origins. In this context, copyright is becoming less a right over an isolated object and more a right over a chain of human decisions. And the more visible, dated, coherent, and secure this chain is, the stronger the claim to protection becomes.
III. Toward the widespread adoption of real-time evidence collection
Therefore, it is essential for all companies and individuals who produce creative works—with or without artificial intelligence—to make use of the real-time protection tools provided by eIDAS-qualified time-stamping. This is not because legal rights would not exist without it, but because the value of a legal right increasingly depends on the quality of the evidence supporting it—particularly in a litigious, contractual, competitive, and technological environment characterised by the accelerating pace of content creation.
eIDAS-compliant real-time timestamping secures critical elements before they get scattered across files, software, version histories, email inboxes, or vague memories. It provides a reliable record of creation. And this memory is invaluable, as it protects against copying, disputes, the blurring of roles, and the gradual erasure of the human element in production processes.
This protection is all the more necessary given that today’s world increasingly values the ability to prove, explain, and document. Markets, platforms, contractual partners, judges, authorities, and competitors are no longer satisfied with general assertions. They demand evidence. They want to see what was done, when it was done, and what the claim is based on. The eIDAS-qualified timestamp fits perfectly into this framework. It offers a trusted technology for transforming creation steps into evidence. It helps organise protection not as an exceptional, last-minute measure, but as a continuous, simple, almost organic practice integrated into the normal life of the business.
It’s also important to understand that this practice isn’t limited to large corporations or legal departments alone. It applies to any organisation that creates. A company that develops software, writes content, designs visuals, produces marketing materials, devises technical processes, develops research innovations, creates videos, sales documents, models, scenarios, databases, or content generated with the help of AI has every reason to adopt a real-time timestamping approach. Why? Because the more digital a creation is, the more volatile it is. The more volatile it is, the more it needs to be documented. The more collaborative it is, the more it must be attributed. The more it is supported by powerful tools, the more human choices must be highlighted.
Finally, timestamping one’s intellectual property isn’t simply about being wary of copycats. It’s about recognising that human creativity deserves to be made visible. It means acknowledging that behind every protected work, there is often a series of decisions, variations, corrections, structures, preferences, rejections, and selections. It means accepting that originality is not always a sudden, isolated flash of inspiration, but often a journey. And a journey is best documented when its stages have been photographed. Time-stamping serves precisely this role as a legal record of the creative process.
Today, this has become essential. It is essential for creating that body of evidence which, while not claiming on its own to fully prove originality, helps to support it, lend it credibility, and ensure it is recognised. Finally, it is essential for defending oneself against anyone who might seek to copy, imitate, appropriate, or challenge it.
In practice, this development is directly reflected in litigation. Judges, faced with digital works that are easily reproducible and modifiable, are placing increasing importance on evidence that helps trace the creative process. The existence of a reliable and continuous timeline can thus tip the scales in favor of the author who invokes it, by reinforcing the consistency and credibility of their case.
The eIDAS-compliant digital time stamp thus emerges as one of the key contemporary tools for protecting intellectual property. It is not a bureaucratic burden, but a modern response to a modern risk. In these uncertain times, when everything moves faster, when everything is copied more easily, and when everything is debated more fiercely, protecting intellectual property as events unfold is no longer a luxury. It is a form of clear-eyed thinking. And this clear-eyed thinking should now guide all companies that create, innovate, or produce content—with or without artificial intelligence.
IV. Operational implementation and structure of a timestamped creation log
From an operational standpoint, implementing a timestamped creation log does not require a major overhaul of existing tools, but rather the structuring of workflows and points of evidence capture. The goal is not to create a parallel system, but to integrate timestamping into the core of the work environments already used by the teams.
This approach can be implemented in a variety of environments (SharePoint, OneDrive, Google Drive, internal document management systems), provided they allow for file organisation and a certain degree of workflow automation. The tool itself is less important than the process of structuring, selecting, capturing, and then certifying.
In an environment such as SharePoint, a dedicated space can be organised around two separate libraries: one for documents currently being created, and the other for items that have been time-stamped. However, not all documents are intended to be time-stamped. It is therefore recommended to implement a selection process, for example using fields or tags applied to the files—such as “creation,” “JDC” (creation log), or “Evidency”—to identify content with evidentiary value. This tagging can take place either when the document is created or when it is saved.
At regular intervals or on demand, the files identified in this way are automatically bundled into archives (for example, in ZIP format), reflecting a specific state of the project at a given point in time. This also captures coherent sets of files corresponding to different stages of the creative process.
These records are not transmitted as-is to a third party, but are used to generate a hash—the only data shared with a qualified timestamping service provider. The returned timestamping certificate is then automatically linked to the corresponding archive and stored in the document management system, thereby ensuring traceability and verifiability over time.
This process can be automated using orchestration tools (such as Power Automate, Zapier, Make, or equivalents), which allow actions to be triggered automatically in response to certain events (file creation, modification, adding a tag, or a deadline). These tools identify the relevant files, trigger the creation of archives, calculate digital fingerprints, and interact with the timestamping provider’s APIs.
Two approaches can thus coexist: on the one hand, periodic qualified timestamping, which allows for the establishment of structural milestones, and on the other, on-demand timestamping for sensitive or strategic stages.
Finally, timestamping can be usefully combined with an archiving process. The resulting archives can be stored in a separate, secure location, ensuring both evidentiary preservation and the ability to back up successive stages of the project. This dual purpose enhances the value of the system by combining legal certainty and document resilience.
Conceived in this way, the creative log is not limited to a one-time deposit of documents, but becomes a dynamic system for capturing creative events. It makes it possible to link each stage to dated, verifiable, and legally admissible evidence, transforming a flow of documents into a genuine evidentiary tool.
References:
I. European Union Case Law
Court of Justice of the European Union (2009), Infopaq International A/S v Danske Dagblades Forening, Case C-5/08, ECLI:EU:C:2009:465.
Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62008CJ0005
Court of Justice of the European Union (2011), Eva-Maria Painer v. Standard VerlagsGmbH and Others, Case C-145/10, ECLI:EU:C:2011:798.
Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62010CJ0145
Court of Justice of the European Union (2012), Football Dataco Ltd and Others v. Yahoo! UK Ltd and Others, Case C-604/10, ECLI:EU:C:2012:115.
Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62010CJ0604
Court of Justice of the European Union (2020), SI, Brompton Bicycle Ltd v. Chedech/Get2Get, Case C-833/18, ECLI:EU:C:2020:461. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62018CJ0833
II. French Case Law
Court of Cassation, 1st Civil Chamber (1986), Pachot, March 7, 1986, No. 83-10.477.
Available at: https://www.legifrance.gouv.fr/juri/id/JURITEXT000007016934/
Court of Cassation, 1st Civil Chamber (2008), November 13, 2008, No. 07-14.277.
Available at: https://www.legifrance.gouv.fr/juri/id/JURITEXT000019778868
Court of Cassation, 1st Civil Chamber (2009), January 22, 2009, No. 07-20.334.
Available at: https://www.legifrance.gouv.fr/juri/id/JURITEXT000020182272
III. German Case Law
Bundesgerichtshof (BGH) (2013), Geburtstagszug, I ZR 143/12.
Available at: https://www.wipo.int/wipolex/en/judgments/details/2998
IV. Case Law from the Netherlands
Hoge Raad (2008), Endstra tapes, ECLI:NL:HR:2008:BC2153.
Available at: https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:HR:2008:BC2153
V. Spanish Case Law
Supreme Court, October 26, 1992
https://vlex.es/vid/202789051?
Supreme Court, April 3, 2012
https://vlex.es/vid/438050238?
VI. Italian Case Law
Cass., January 16, 2023, No. 1107/2023
https://apps.dirittopratico.it/sentenza/cassazione/roma/2023/1107.html?
VII. Romanian Law
, Romania (1996), Law No. 8 of March 14, 1996, on Copyright and Related Rights (as amended through Law No. 69-2022)
Available at: https://www.wipo.int/wipolex/en/law/neighboring_rights_romania
VIII. Greek Law
, Greece (1993), Law 2121/1993 on Copyright and Related Rights as well as Cultural Rights, updated as of April 4, 2018).
Available at: https://www.wipo.int/wipolex/en/legislation/details/18205
IX.
Law Bulgaria, Copyright and Related Rights Act (SG No. 56/1993, updated as of December 13, 2019).
Available at: https://www.wipo.int/wipolex/en/legislation/details/19460 (English version not updated to reflect the 2023 amendments)
X. Slovak Law
Slovakia (2015), Copyright Act (Act No. 185/2015 Coll.).
https://www.wipo.int/wipolex/en/legislation/details/22748
https://www.culture.gov.sk/wp-content/uploads/2020/02/AZ_eng-2.pdf (English version not updated to reflect the 2022 amendments, Law No. 455/2022)
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