The Court of Justice of the European Union (“Court”) delivered a judgment dated October 6, 2021 in Top System SA v. the Belgian State (Case C-13/20) (“Decision”), where the Court analysed (i) whether, under the Council Directive on the Legal Protection of Computer Programs dated May 14, 1991 (“Directive”), the purchaser of a computer program is entitled to ‘decompile’ all or part of such program in order to rectify errors, and (ii) if such decompilation must satisfy the conditions/requirements prescribed Article 6 of the Directive. Decompilation is a process by which the ‘object code’, or the final form in which a computer program is communicated to a user, is translated back into its ‘source code’ in order to decipher the coding content behind such program.

Background:

A Belgian IT service provider and program developer ‘Top System SA’ (“Top System”) developed several computer applications (“Programs”) for the ‘Selection Office of the Federal Authorities’, a Belgian governmental authority (“SELOR”). The Programs were either (i) developed from Top System’s own original framework called the ‘Top System Framework’ (“TSF”), or (ii) specifically developed and tailored for SELORs needs. The Programs were licensed by SELOR from Top System on a user license.

Between June to October, 2008, SELOR discovered several errors with the Programs which were not resolved by Top System despite several communications. Subsequently on July 6, 2009, Top System filed a case against SELOR before the Tribunal de Commerce de Bruxelles (Commercial Court) seeking damages from the Belgian state (of which SELOR was a part) for SELOR allegedly ‘decompiling’ and copying the source code of its TSF software. After several appeals in Belgian courts, the matter was referred to the Court for a preliminary ruling.

Decision of the Court:

Article 4 of the Directive establishes the exclusive rights of author(s) of computer programs, as holders of copyright, to, inter alia, make or authorise reproductions of the program or any other alteration of the computer program, subject to the exceptions prescribed in Articles 5 and 6 of the Directive.

However, in the absence of specific contractual provisions, Article 5(1) of the Directive exempts a lawful purchaser of a computer program from requiring the authorisations set out in Article 4 for acts that are necessary to use the computer program for its intended purpose, including for error correction. The Court noted that Article 6 of the Directive also exempts a lawful purchaser from requiring the authorisations where the reproduction or translation of the code is indispensable to obtaining the information necessary for ensuring interoperability with other programs, provided prescribed conditions relating to interoperability are met.

The Court held that Article 5(1) of the Directive entitles a lawful purchaser of a computer program to decompile it to correct errors affecting the functioning of that program, including in situations where correction involves disabling a function that affects the operation of the application of which the program forms a part.

The Court reiterated that decompilation of a computer program under Article 5(1), (i) must be ‘necessary’ for use of the computer program in the manner it was intended, including for error correction, (ii) will not be deemed ‘necessary’ if the source code is otherwise lawfully or contractually accessible to the purchaser, and (iii) cannot be used for purposes other than correction of errors. The Court maintained that the holder and the purchaser of the computer program remain free to contractually determine the manner in which the decompilation option may be exercised, including through terms that ensure corrective maintenance by the holder if an error were to arise in the program.

Summarily, the Court held that a computer program may be decompiled in order to correct errors affecting its operation without complying with the prescribed conditions of Article 6 relating to interoperability.

Please find a copy of the Decision, here.

This update has been contributed by Suchita Ambadipudi (Partner) and Pranav Valiathan Pillai (Associate).

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