IP Iustitia: June 2021

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In the wake of the recent Oracle v Google ruling, copyright protection in computer programming faces its latest hurdle, this time in European courts. An important aspect of computer software management is the correction of pervasive errors, whether due to the implementation of software or software in isolation. When you encounter such bugs, you may need to decompile the program, which in simple terms means converting an executable computer program into source code, allowing you to fix the errors, and then recompiling the program to allow it to run. While decompilation can be used for more nefarious purposes (such as allowing “cracking” of copyrighted software), it can solve legitimate problems in licensed copies of software. But, because of this potentially harmful way of using decompilation, would it violate copyright? Fortunately, the CJEU is on the case, but before the main court looked into the matter, Advocate General Szpunar gave his two cents not too long ago.

The case of Top System SA v. Belgian State concerned a certain number of applications developed by Top Systems for the Belgian Office for the Selection of Federal Authorities (also called SELOR), including SELOR Web Access and eRecruiting, which is in charge of the selection and orientation of future candidates. staff from the various local authorities’ public services. Many applications developed by Top Systems contained components tailored to SELOR specifications. In February 2008, Top Systems and SELOR entered into a set of agreements, one of which concerned the installation and configuration of a new development environment as well as the integration of SELOR application sources and their migration to it. new environment. As with many projects, issues affected the various applications. As a result of these problems, Top Systems sued SELOR (and the Belgian state) for copyright infringement due to the decompilation of Top Systems’ software. After the usual progress of the case before the Belgian courts, the case finally ended up before the CJEU, as well as the office of the GA. The referring court put two questions to the CJEU.

The first question asked “… if Article 5 (1) of Directive 91/250 authorizes the legitimate purchaser of a computer program to decompile that program when such decompilation is necessary to correct errors affecting its operation”.

The GA first noted that although computer programs enjoy copyright protection in the reproduction of the program, this is limited due to the nature of the operation of computer programs (i.e. that is, they must be reproduced in the memory of a computer in order to function). Strict enforcement would hamper the use of computer programs by consumers and is therefore undesirable. The same goes for protection against tampering. The above directive takes this into account and specifies that the reproduction and modification of computer programs “… do not require the authorization of the right holder when they are necessary for the use of the program by the legitimate purchaser, including for the correction of errors”. However, article 5 leaves the possibility of restricting these acts by contractual provisions.

Even if it is possible, the possibility of contractually restricting the reproduction or the modification is there, it cannot extend to all these activities, because the acts of loading and execution of a computer program necessary for this use do not may be prohibited by contract.

The GA then moved on to the issue of decompiling for error correction. He agreed with the comments made by interested parties that decompilation is covered by the exclusive rights of the author under the Directive, although there is no express provision for “decompilation” there. -low.

Gary wanted to fix the software, but his hands were tied …

Although defended by TopSystems, decompilation cannot be excluded from these rights under Article 6 according to the GA (which allows the reproduction and translation of a computer program if it is essential for the operation of the program with other programs). The relevant provision therefore remains in Article 5 and 6 will not affect the exclusion of decompilation. Section 6 is not the only case where it is possible to decompile a computer program.

The GA therefore proposed to answer the first question as “… Article 5 (1) … must be interpreted as allowing a legitimate purchaser of a computer program to decompile that program when necessary to correct errors affecting its operation”.

He then moved on to the second question which asked “… in the event that Article 5 (1) … should be interpreted as authorizing a legitimate purchaser of a computer program to decompile this program when this is necessary to correct errors, this decompilation must meet the requirements of Article 6 of that Directive or, in fact, other requirements “.

Clause 6 provides, as indicated above, for decompiling a computer program when necessary in order to ensure the compatibility of another independently created program with the program. The GA discussed the specific requirements of Article 6, namely that: (i) they only apply to those who have legally acquired the program; (ii) decompilation must be necessary for this program to be used for its intended purpose and for error correction; and (iii) the intervention of the user of the computer program must be necessary with regard to the objective pursued.

Regarding the second condition, the MA noted that an “error” should be defined as “… a malfunction which prevents the use of the program for its intended purpose”. Note that this does not include modifying and / or improving a program, but simply allowing the program to be used for its intended purpose.

On the third condition, the GA clarified that if the decompilation of a program may be necessary, it is not always. He determined that “… the legitimate purchaser of a computer program therefore has the right, by virtue of [Article 5(1)], to decompile the program to the extent necessary not only to correct an error stricto sensu, but also to locate this error and the part of the program which must be modified “. Thus, a legitimate user can decompile a program both to correct and locate errors, which gives him ample room to do so. However, the GA noted that the decompiled program cannot be used for other purposes.

The GA therefore proposed the answer to the second question as “… Article 5 (1) … must be interpreted as meaning that the decompilation of a computer program … by a legitimate purchaser, in order to correct errors in this program, does not is not subject to the requirements of Article 6 of the said Directive, however, such decompilation may only be carried out to the extent necessary for this correction and within the limits of the contractual obligations of the purchaser..

The CJEU ruling will be interesting and will undoubtedly have an impact on the ability of programmers and businesses to decompile computer programs to correct errors they might find while using said programs. It would make sense to allow their decompilation for this limited purpose, since without this right major errors could render programs useless until such time as the vendor can and decides to correct those errors. It remains to be seen whether the CJEU will agree with the GA, but it would seem wise that they follow its answers.



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