On 6 October 2021, the Court of Justice of the EU issued a landmark ruling (case C-13/20) which provides helpful guidance on the rights and obligations of a software licensee relating to decompilation.
Top System is a Belgian software developer that has developed several applications for the Belgian public organisation “Selor”. The applications concerned contain (i) “tailor-made” components developed to meet Selor’s needs and (ii) components from Top System’s framework software.
Due to persistent software malfunctions, Selor decompiled part of the framework software to disable the malfunction. Before the Court of Appeal of Brussels, Top System claimed that this decompiling was not permitted and was contrary to Article 6 of the Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (the “Software Directive”).
The Court of Appeal referred two questions to the Court of Justice.
The Court of Appeal first asked whether the lawful acquirer of a computer program has the right to decompile the program if necessary to enable the correction of errors affecting the operation of the program.
Article 4 of the Software Directive grants exclusive rights to the author of a computer program, including reproduction, translation, adaptation, arrangement and any other alteration of the computer program. “Decompilation” as such is not explicitly mentioned in Article 4 of the Software Directive. Article 5 of the Software Directive provides that, unless otherwise provided in the licence agreement, the licensee may perform acts mentioned under Article 4 to the extent that these are necessary for the use of the computer program in accordance with its intended purpose, including for error correction. Article 6 of the Software Directive specifically relates to decompilation and provides that reproduction of the code and translation of its form may be carried out without the rightholder’s authorisation if indispensable to achieve the interoperability of the program and under certain conditions.
The Court of Justice considered that decompilation of a computer program involves the reproduction of the program code and the translation of the form of that code, which in fact come within the exclusive rights of the author as defined in Article 4(a) and (b) of the Software Directive. Since Article 5 allows the lawful purchaser of a computer program to perform the acts listed in Article 4(a) and (b), provided that that act is necessary for use of that program, including for the correction of errors, the Court ruled that Article 5 must be interpreted as meaning that the legitimate acquirer of a computer program can decompile that program to correct errors affecting its operation. Furthermore, “while Article 6 of Directive 91/250 concerns the acts necessary to ensure the interoperability of independently created computer programs, the objective of Article 5(1) of that directive is to enable the lawful purchaser of a program to use it in accordance with its intended purpose. Those two provisions therefore have different purposes.”
The Court of Appeal also asked, if the first question would be answered in the affirmative, whether the conditions referred to in Article 6 of the Software Directive, related to decompilation, or any other conditions should be satisfied.
The Court of Justice (confirming its finding that Article 5 and Article 6 have different purposes) stated that “the requirements laid down in Article 6 are not, as such, applicable to the exception laid down in Article 5(1) of that directive”. However, decompiling must comply with the conditions laid down in Article 5(1) of the Directive. This means, according to the Court, that the acts must be necessary for the lawful acquirer to be able to use the program for its intended purpose. Also, since Article 5(1) allows errors to be corrected subject to “specific contractual provisions”, the contractual provisions relating to the corrective maintenance should be taken into account. Furthermore, the result of the decompilation cannot be used for purposes other than the correction of the errors.
This decision once again emphasises the importance for both licensors and licensees to contractually address the procedure for correcting errors in order to avoid discussion concerning the parties’ rights and obligations, including with respect to software decompilation.
Please contact Karel Janssens for further information on this topic and/or for general legal advice relating to software and IT contracts.