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Only original software can be resold, rules top EU court

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Only original software can be resold, rules top EU court

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(LUXEMBOURG) - The owner of a computer program with an unlimited user licence is entitled to resell the original, the EU's top court ruled on Wednesday, but not a back-up copy if the original is not available.

The European Court of Justice heard that criminal proceedings had been brought against two people charged with unlawful selling, as part of a criminal organisation, various Microsoft copyright-protected computer programs, including Windows and Office on an online marketplace in 2004.

The material damage caused to Microsoft of the sale of more than 3,000 copies of programs was evaluated at EUR 265,514.

The Latvian court had asked the ECJ whether EU Law must be interpreted as meaning that the acquirer back-up copy of a computer program, stored on a non-original material medium, may, under the rule of exhaustion of the rights holder's distribution right laid down in an EU Directive on the legal protection of computer programs (Council Directive 91/250/EEC) , resell that copy where (i) the original material medium of that program, acquired by the initial acquirer, has been damaged and (ii) that initial acquirer has erased his copy or ceased to use it.

In its judgement, the Court ruled that the holder of the copyright in a computer program who sold a copy on a material medium (i.e. a CD or DVD) with an unlimited user licence can no longer oppose the subsequent resale of that copy by the initial acquirer or subsequent acquirers of that copy, notwithstanding the existence of contractual terms prohibiting any further transfer.

Concerning resale of a back-up copy by a person who acquired it from the initial acquirer or from a subsequent acquirer, the Court noted that the directive granted the holder of the copyright in a computer program the exclusive right to do or to authorise the permanent or temporary reproduction of that program by any means and in any form, in part or in whole, subject to the specific exceptions laid down in the directive.

The lawful acquirer of a copy of a computer program, placed on the market by the right holder or with his consent, may therefore resell that copy, provided that that sale does not adversely affect the right holder's exclusive reproduction right and that any acts of reproduction of that program are authorised by that right holder or are covered by the exceptions laid down in the directive.

In that respect, the Court pointed out that the directive provides that the making of a back-up copy by a person having a right to use the computer program may not be prevented by contract in so far as it is necessary for that use. Any contractual provisions contrary to that rule are to be null and void.

The making of a back-up copy of a computer program was subject to two conditions. That copy must (i) be made by a person having a right to use that program and (ii) be necessary for that use.

According to the Court, that rule, which lays down an exception to the exclusive reproduction right of the holder of the copyright in a computer program, must be interpreted strictly.

So a back-up copy of a computer program can be made and used only to meet the sole needs of the person having the right to use that program and that, accordingly, that person cannot - even though he may have damaged, destroyed or lost the original material medium - use that copy in order to resell that program to a third party.

The Court therefore held that although the initial acquirer of a copy of a computer program accompanied by an unlimited user licence is entitled to resell that copy and his licence to a new acquirer, he may not, however, in the case where the original material medium of the copy that was initially delivered to him has been damaged, destroyed or lost, provide his back-up copy of that program to that new acquirer without the authorisation of the rightholder.

Case C-166/15 Aleksandrs Ranks and Jurijs Vasilevics - case documents


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