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

Facts

The Belgian Court of Appeal put two questions to the CJEU, essentially asking whether decompilation is allowed under Article 5 (1) of the Software Directive (91/250 / EEC) with the aim of correcting errors affecting the operation of a program or whether decompilation is only allowed in the situations set out in clause 6 (which specifically allows decompilation in certain circumstances only). If decompilation for the correction of errors is permitted under Article 5 (1), the court of appeal also asked whether the conditions set out in Article 6 must be fulfilled.

Law

Article 5 (1) provides: “‘In the absence of specific contractual provisions, the acts referred to in Article 4 (a) and (b) are not subject to the authorization of the right holder when they are necessary for the use of the program computer by the legitimate purchaser in accordance with its intended purpose, including for the correction of errors “.

Articles 4 (a) and (b) set out a non-exhaustive list of the exclusive rights of the copyright owner, which are declared to be subject to Articles 5 and 6.

Opinion

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

According to recital 17 of Directive 91/250, “the acts of loading and execution necessary for the use of a copy of a legally acquired program, as well as the act of correcting errors, cannot be prohibited by contract “. However, the analysis of the legislative part of the directive leads to the opposite conclusion.

Article 5 (1) treats all acts listed in Articles 4 (a) and (b) in the same way. There is therefore no margin of interpretation which would make it possible to exempt certain acts, namely the loading and execution of the program and the correction of errors, from the reservation relating to the contractual provisions contained in article 5, paragraph 1. Although the recitals can guide the interpretation of the provisions of a directive, they do not have the legislative force to replace missing provisions or lead to an interpretation. contra mundum.

However, the contract between the parties in this case did not limit the correction of errors in the computer programs concerned. Therefore, the defendant was entitled to do so under Article 5, paragraph 1.

The question was therefore whether Article 5 (1) allows the use 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”; that the “quasi-source code” is essentially a reproduction of the program resulting from its alteration, that is to say the translation of the machine language into a programming language. 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, the GA said that if decompilation falls within the scope of Articles 4 (a) and (b), it must necessarily also fall within the scope of Article 5 (1).

Consequently, the GA advised the CJEU to consider that Article 5 (1) should be interpreted as allowing a legitimate purchaser of a computer program to decompile this 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, according to the MA, the intervention of the user of the computer program must be necessary in 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.

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 (Opinion of the Advocate General) (March 10, 2021) – 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.


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Gordon K. Morehouse