Brussels, 24/04/2012 (Agence Europe) - Creators of computer programs may oppose the re-sale of “used” licences which allow their programs to be downloaded from the internet again, but not the resale of “used” copies, downloaded by their own customers from the internet, given that their exclusive right of distribution relating to those copies is “exhausted”.
That was the opinion given by Advocate General Yves Bot to the Court of Justice of the EU (case C-128/11), which has been called on by the Bundesgerichtshof (Federal Supreme Court, Germany) to interpret the directive on the legal protection of computer programs (2009/24/EC). That directive provides that the first sale in the EU of a copy of a program by the right holder or with his consent shall “exhaust” the right of distribution within the EU of that copy, with the exception of the right to control further rental of the program. Thus, the intellectual property right holder who has marketed a copy in the territory of a member state loses the right to rely on his monopoly on exploitation in order to oppose the resale of that copy.
The Advocate General says the principle of exhaustion applies where the right holder, who allowed that copy to be downloaded from the internet to a data carrier, also granted, for consideration, a right to use that copy for an unlimited period of time. The term “sale”, within the meaning of the aforementioned directive, would divest the exhaustion principle of all scope and undermine its effectiveness. He also proposes to define the term "sale" as any act by which a copy of a computer program is made available in the EU, in any form and by any means, for the purposes of being used for an unlimited period and in return for a lump-sum payment. He is therefore of the opinion that a “licence” for the use of software should be considered as a sale.
Nevertheless, the resale of user licences should not be held to be valid: the principle of exhaustion relates to the right of distribution and not the right of reproduction. Hence, whereas the resale of a downloaded copy by the first acquirer falls within the ambit of the right of distribution and may be carried out without the consent of the supplier under the principle of exhaustion, the assignment of a user licence, independently of the downloaded copy, allowing the program to be reproduced by creating a new copy by download from the internet, does not fall within the scope of the exhaustion principle. The Advocate General concludes that in the event of resale of a licence, the second acquirer cannot rely on exhaustion of the right to distribute the copy initially downloaded in order to reproduce the computer program by creating a new copy, even if the first acquirer has erased his copy or no longer uses it. (FG/transl.rt)