A-G CJEU on which procedure is applicable to non-compliance with the terms of a software licence

Case C-666/18: IT Development v Free Mobile. Conclusie A-G Sánchez-Bordona.

Copyright. The French cour d’appel de Paris asks whether a software licensee’s non-compliance with the terms of a software licence constitutes an infringement (for the purposes of Directive 2004/48 of 29 April 2004) or complies with a separate system of legal rules, such as the system of rules on contractual liability under ordinary law? A-G Sánchez-Bordona proposes that the Court’s answer to the question referred for a preliminary ruling should be as follows:

“Articles 4 and 5 of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs, in conjunction with Article 3 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, must be interpreted as meaning that:

– The modification of a computer program’s source code in breach of a licensing agreement constitutes an infringement of the intellectual property rights enjoyed by the holder of the copyright in that program, provided that that modification is not exempt from authorisation under Articles 5 and 6 of Directive 2009/24.

– The legal basis for the action which a holder of the copyright in a computer program may bring against the licensee for infringement of the former’s rights is contractual where the licensing agreement itself reserves such rights for the author of the program, in accordance with Article 5(1) of Directive 2009/24.

– It is for the national legislature to determine, with due regard for the provisions of Directive 2004/48 and the principles of equivalence and effectiveness, the procedural arrangements necessary to protect the copyright in the computer program against infringement, where such infringement simultaneously entails an infringement of copyright and a breach of contract."

Read the opinion here.