Back-up copy of a computer program may not be provided to another without authorisation of the rightholder
12-10-2016 Print this page
First acquirer of a computer program may not provide his back-up copy of that program when the original is damaged, destroyed or lost without authorisation of the rightholder.
"34. The exhaustion of the distribution right laid down in Article 4(c) of Directive 91/250 concerns the copy of the computer program itself and the accompanying user licence, and not the material medium on which that copy has, as the case may be, been first offered for sale in the European Union by the copyright holder or with his consent.
35. In that respect, it follows from the Court’s case-law that Article 4(2) of Directive 2009/24, which reproduces the content of Article 4(c) of Directive 91/250, refers, without further specification, to the ‘sale … of a copy of a program’ and thus makes no distinction according to the tangible or intangible form of the copy in question (see, to that effect, judgment of 3 July 2012, UsedSoft, C-128/11, EU:C:2012:407, paragraph 55).
40. In that respect, it must be recalled, in the first place, that Article 5(2) of Directive 91/250 provides that the making of a back-up copy by a person having a right to use the computer program may not be prevented by contract in so far as it is necessary for that use. Article 9(1) of that directive provides that any contractual provisions contrary to Article 5(2) are to be null and void.
41. As is apparent from Article 5(2) of that directive, the making of a back-up copy of a computer program is therefore subject to two conditions. That copy must (i) be made by a person having a right to use that program and (ii) be necessary for that use.
42. That provision, laying down an exception to the exclusive reproduction right of the holder of the copyright in a computer program must, in accordance with the settled case-law of the Court, be interpreted strictly (see, by analogy, judgment of 1 December 2011, Painer, C-145/10, EU:C:2011:798, paragraph 109).
43. It follows that a back-up copy of a computer program may be made and used only to meet the sole needs of the person having the right to use that program and that, accordingly, that person cannot — even though he may have damaged, destroyed or lost the original material medium — use that copy in order to resell that program to a third party.
51. It must, however, be noted that the circumstances of the case before the referring court differ from those of the case that gave rise to the judgment of 3 July 2012, UsedSoft (C-128/11, EU:C:2012:407). It is apparent from the documents before the Court that Mr Ranks and Mr Vasiļevičs sold, on the internet, copies of computer programs on non-original material media and there is nothing to suggest that they initially purchased and downloaded those copies from the rightholder’s website.
52. Nevertheless, the situation of the lawful acquirer of a copy of a computer program, sold stored on a material medium which has been damaged, destroyed or lost, and that of the lawful acquirer of a copy of a computer program purchased and downloaded on the internet are comparable with regard to the rule of exhaustion of the distribution right and the exclusive reproduction right granted to the rightholder.
53. The lawful acquirer of the copy of a computer program, who holds an unlimited licence to use that program but who no longer has that original material medium on which that copy was initially delivered to him, because he has destroyed, damaged or lost it, cannot, for that reason alone, be deprived of any possibility of reselling that copy to a third party, since this would render ineffective the exhaustion of the distribution right under Article 4(c) of Directive 91/250 (see, to that effect, judgment of 3 July 2012, UsedSoft, C-128/11, EU:C:2012:407, paragraph 83).
57. It follows from all of the foregoing that Article 4(a) and (c) and Article 5(1) and (2) of Directive 91/250 must be interpreted as meaning that, although the initial acquirer of a copy of a computer program accompanied by an unlimited user licence is entitled to resell that copy and his licence to a new acquirer, he may not, however, in the case where the original material medium of the copy that was initially delivered to him has been damaged, destroyed or lost, provide his back-up copy of that program to that new acquirer without the authorisation of the rightholder."
IPPT20161012, CJEU, Ranks and Vasiļevičs
Case C-166/15 - ECLI:EU:C:2016:762
