The Court of Justice of the European Union did not support telephone operator Free Mobile in its dispute with infrastructure management company IT Development. In a judgment handed down on Wednesday 18 December, the Luxembourg judges described the modification of software operated by Free Mobile as “copyright infringement” rather than a mere breach of contract (Case C-666/18).
IT Development granted Free Mobile a licence and maintenance contract for centralised project management software designed to enable the telephone operator to organise and monitor in real time the deployment of all its radiotelephone antennae. IT Development denounces Free Mobile for having modified the software, in particular by creating new forms. This is despite the fact that the licence agreement stipulates that the customer is expressly prohibited from “reproducing, directly or indirectly, the software package, decompiling and/or reverse engineering it, as well as modifying, correcting, adapting, creating secondary works or adding to it, directly or indirectly, with respect to this software”.
In response to this dispute, the Regional Court of Paris referred a question to the Court of Justice for a preliminary ruling on the qualification to be given to Free Mobile’s conduct. The French court considers that there are two distinct liability regimes in intellectual property matters in France: one, criminal, in the event of infringement of the software’s creator’s exploitation rights, the other, contractual, in the event of infringement of a copyright reserved by contract.
In its judgment, the European Court replied that this was indeed an “infringement of intellectual property rights” within the meaning of Directive 2004/48 (on the enforcement of intellectual property rights). First of all, it stresses in this respect that “determination of the liability regime applicable in the event of infringement of the copyright of a computer program by a licensee of that program falls within the competence of the Member States”. However, it adds that the application of a particular liability regime - such as the general law’s contractual liability regime - must not constitute an obstacle to the effective protection of the intellectual property rights of the owner of the copyright of that program. Link to the judgment: https://bit.ly/35w3bGe (Original version in French by Sophie Petitjean)