The initial acquirer of a copy of a computer programme, accompanied by an unlimited user licence, may resell that copy and his licence to a new acquirer.
However, where the original material medium of the copy that was initially delivered has been damaged, destroyed or lost, that acquirer may not provide his back-up copy of that programme to that new acquirer without the authorisation of the rightholder.
This emerged from ruling C-166/15 issued on Wednesday 12 October by the European Court of Justice in answer to a question from the College of Penal Affairs at the regional court of Riga in Latvia. Latvian judges asked whether the acquirer of a back-up copy of a computer programme, stored on a non-original material medium, may, under the rule of exhaustion of the rightholder’s distribution right laid down in EU Directive 91/250/EEC on the legal protection of computer programmes, resell that copy where (i) the original material medium of that programme, acquired by the initial acquirer, has been damaged and (ii) that initial acquirer has erased his copy or ceased to use it.
In the ruling, the court explains the scope of the rule, saying that the holder of the copyright in a computer programme 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.
The judges say, however, that the resale of copies of the original by the first buyer or further buyers is banned even if the original is damaged, destroyed or lost. The directive gives the copyright holder the exclusive right to authorise permanent or temporary copies of all or part of the programme in question in any form and any format.
The only exception under the directive is the option of making a back-up copy by a person having a right to use the computer programme, which may not be prevented by contract insofar as it is necessary for that use. Such copies may only be resold with the knowledge and authorisation of the programme copyright-holder.(Original version in French by Francesco Gariazzo)