Facts

The Belgian Court of Appeal has referred two questions to the CJEU, essentially asking whether decompilation is permitted under Article 5(1) of the Software Directive (91/250/EEC) for the purpose of correcting errors affecting a program's function or whether decompilation is only permitted in the situations set out in Article 6 (which specifically allows decompilation in certain circumstances only). If decompilation for error correction is permitted under Article 5(1), the Court of Appeal has also asked whether the conditions set out in Article 6 must be satisfied.

Law

Article 5(1) provides: "'In the absence of specific contractual provisions, the acts referred to in Article 4(a) and (b) shall not require authorisation by the rightholder where they are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction".

Articles 4(a) and (b) set out a non-exhaustive list of the copyright holder's exclusive rights, which are stated to be subject to Articles 5 and 6.

Opinion

Advocate General Szpunar noted that, under Article 5(1), acts carried out by the lawful acquirer of a computer program in the context of using that program are not subject to the rights holder's exclusive rights "in the absence of specific contractual provisions". Therefore, in the absence of contractual provisions, the lawful acquirer of a computer program is free to carry out acts subject, as a rule, to the rights holder's exclusive rights, provided that the program in question continues to be used in accordance with its intended purpose, which includes the correction of errors.

According to Recital 17 of Directive 91/250, "the acts of loading and running necessary for the use of a copy of a program which has been lawfully acquired, and the act of correction of errors, may not be prohibited by contract".  However, analysis of the legislative part of the directive leads to the opposite conclusion.

Article 5(1) treats all the acts listed in Articles 4(a) and (b) in the same way. Therefore, there is no scope for interpretation which would allow certain acts, i.e. the loading and running of the program and the correction of errors, to be exempted from the reservation relating to contractual provisions contained in Article 5(1).  Although the recitals may guide the interpretation of the provisions of a directive, they lack the legislative force to replace absent provisions or lead to an interpretation contra mundum.

However, the contract between the parties in this case did not restrict the correction of errors in the computer programs concerned. Therefore, the defendant was entitled to do so under Article 5(1).

The question was, therefore, whether Article 5(1) permits the use of decompilation as a way of correcting errors.

The AG noted that, according to case law, both the source code and the object code are two forms of expression of the same computer program and both are protected under the Directive. Further, decompilation consists of transforming the program from object code into "quasi-source code"; that "quasi-source code" is essentially a reproduction of the program resulting from its alteration, i.e. translation of the machine language into a programming language. Such reproduction is expressly subject to the exclusive right of the program's author pursuant to Article 4(b). In addition, Article 6(1) refers to the "reproduction of the code and translation of its form within the meaning of Article 4(a) and (b)" (emphasis added).

Accordingly, the AG opined that decompilation of a computer program falls within the scope of the exclusive rights of the author as set out in Articles 4(a) and (b). It was entirely logical, the AG said that if decompilation falls within the scope of Articles 4(a) and (b), it must necessarily also fall within the scope of Article 5(1).

Accordingly, the AG advised the CJEU to hold that Article 5(1) should be interpreted as permitting a lawful acquirer of a computer program to decompile that program where it is necessary to correct errors affecting its functioning.

As for Article 6, the AG noted that it is independent from Article 5. Therefore, the Article 6 requirements cannot apply, directly or indirectly, to the exception set out in Article 5(1).

However, that did not mean that Article 5(1) was not subject to other applicable requirements. Article 5(1) itself provides that the act in question (i.e. decompilation in this case) must be necessary for that program to be used in accordance with its intended purpose, including error correction.

Further, the AG said, the intervention of the user of the computer program must be necessary from the perspective of the objective pursued. The question is therefore whether and to what extent the decompilation of the program is necessary to correct errors in it.

The AG said that it was for the national court to determine the exact contractual rights and obligations of the parties, but in his view, if there is no restriction on error correction in the contract, then the lawful acquirer is free to carry out the acts in Articles 4(a) and (b), including decompilation, where it is necessary to correct errors. In fact, in the AG's view, the lawful acquirer of a computer program is entitled, under Article 5(1), to decompile the program to the extent necessary, not only to correct an error in the strict sense, but also to locate that error and the part of the program that has to be amended.

Accordingly, the AG opined that Article 5(1) should be interpreted as meaning that the decompilation of a computer program, pursuant to that provision, by a lawful acquirer, in order to correct errors in that program, is not subject to the requirements of Article 6. However, such decompilation may be carried out only to the extent necessary for that correction and within the limits of the acquirer's contractual obligations. (Case C-13/20 Top System SA v Belgian State EU:C:2021:193 (Opinion of Advocate General) (10 March 2021) — to read the Opinion in full, click  here).

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