Advocate General is of the opinion that a legitimate purchaser of a computer program can correct errors which affect its functions by decompilation if this is necessary and the contract does not restrict it – Technology


The Belgian Court of Appeal put two questions to the CJEU, asking whether decompilation is permitted under Article 5 (1) of the Software Directive (91/250 / EEC) (which provides that the rights exclusive rights of the holder of the right to undertake certain acts concerning or if decompilation is only permitted in the situations set out in Article 6 (which specifically allows decompilation in certain circumstances only). is authorized under Article 5 (1), the Court of Appeal also asked whether the conditions set out in Article 6 must be fulfilled.

In a recently published opinion in English, Advocate General Szpunar noted that under Article 5 (1), acts performed by the lawful purchaser of a computer program in connection with the use of this program are not subject to the exclusive rights of the rights holder “In the absence of specific contractual provisions”. Thus, in the absence of a contract, the legitimate purchaser of a computer program is free to perform acts subject, as a general rule, to the exclusive rights of the rightholder, provided that the program in question continues. to be used according to its intended purpose, which includes correcting errors.

In addition, said the GA, Article 5, paragraph 1, treats all acts listed in Articles 4 (a) and (b) in the same way. There is therefore no margin of interpretation which would allow certain acts, for example the correction of errors, to be exempted from the rights of the legitimate purchaser in the absence of contractual provisions.

Furthermore, the contract between the parties in this case did not limit the correction of errors in the computer programs concerned. Therefore, the defendant had the right to correct errors under Article 5, paragraph 1.

The question was therefore whether Article 5 (1) allows the act of decompilation as a means of correcting errors.

The GA noted that, according to case law, source code and object code are two forms of expression of the same computer program and both are protected by the Directive. In addition, decompilation consists of transforming the object code program into “quasi-source code”; this “quasi-source code” is essentially a reproduction of the program. This reproduction is expressly subject to the exclusive right of the author of the program in accordance with article 4 (b). In addition, Article 6 (1) refers to the “reproduction of the code and translation of its form within the meaning of Article 4, points a) and b) (emphasis added).

Consequently, the GA considered that the decompilation of a computer program falls under the exclusive rights of the author as set out in Articles 4 (a) and (b). It was quite logical, said the AG, that it must necessarily also fall within the scope of Article 5 (1). Consequently, the AG advised the CJEU to consider that the Article 5 (1) should be interpreted as allowing a legitimate purchaser of a computer program to decompile that program when it is necessary to correct errors affecting its operation.

As for Article 6, the GA noted that it is independent of Article 5. Therefore, the requirements of Article 6 cannot be applied, directly or indirectly, with the exception set out in ‘Article 5 (1).

However, this did not mean that Article 5 (1) was not subject to other applicable requirements. Article 5 (1) itself provides that the act in question (i.e. decompilation in this case) must be necessary for this program to be used in accordance with its intended purpose, including the correction of errors.

In addition, specified the GA, the intervention of the user of the computer program must be necessary from the point of view of the objective pursued. The question is therefore whether and to what extent decompiling the program is necessary to correct the errors it contains.

However, the issue in the present case was not the need to decompile the program in order to correct the errors, but the condition for the application of Article 5 (1), that is to say the absence of provisions contractual prohibiting it.

The AG said that it was for the national court to determine the exact contractual rights and obligations of the parties, but in his opinion, if there is no restriction on the correction of errors in the contract, then the The legitimate purchaser is free to perform the acts in Article 4 (a) and (b), including decompilation, when it is necessary to correct errors. Indeed, according to the GA, the legitimate purchaser of a computer program has the right, under Article 5 (1), to decompile the program to the extent necessary, not only to correct an error in the strict sense, but also to locate error and the part of the program that needs to be changed.

Consequently, the AG considered that Article 5 (1) should be interpreted as meaning that the decompilation of a computer program, in accordance with this provision, by a legitimate purchaser, in order to correct errors in this program is not subject to the requirements of Article 6. However, this decompilation can only be carried out to the extent necessary for this correction and within the limits of the contractual obligations of the purchaser. (Case C-13/20 Top System SA v Belgian State EU: C: 2021: 193 (March 10, 2021) (Opinion of the Advocate General) – to read the conclusions in full, click on here).

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.


Gordon K. Morehouse