Brussels, 01/06/2016 (Agence Europe) - Union law is opposed to a second-hand market for non-original material copies of computer programs. This ban, however, does not apply to original material and immaterial copies, explained the Advocate General Henrik Saugmandsgaard Oe at the Court of Justice in his conclusions made on Wednesday 1 June.
Case-166/15 focuses on the interpretation of the 91/250/EEC directive, following a complaint made by Microsoft against two Latvians who made 3000 copies of its Windows and Office programs without any authorisation. Directive 91/250/EEC allows the copyrights holder to authorise the reproduction of computer programs and the distribution to the public of the original or copies of the said programme. Nonetheless, exclusive distribution rights are exhausted "as soon as the programme copy is sold for the first time by the rights holder or with the consent of the rights holder". The two interested parties, Mr Ranks and Mr Vasilevics, argued in their defence that they had acquired these copies from companies or individuals who no longer needed to use them and that they could therefore resell them because distribution rights had been exhausted.
In his conclusions, the Advocate General proposed to the Court that it find in favour of Microsoft. According to the former, a distinction needs to be made between the original material copy (original copy of the computer program contained on a CD, for example, and sold by the program user) and the nonoriginal material copies (copy of the original programme made by the user on another CD for backup purposes, for example). He indicated that the role on the exhaustion of distribution rights does not apply to the sale or distribution of non-original material copy. He added that a second-hand market is legal for original material and nonmaterial copies "on the condition that the reseller disables any other copy that they may have in their possession" failing which would be an infringement of reproduction rights. (Original version in French by Sophie Petitjean)