DIRECTIVE 2009/24/EC on the legal protection of computer programs

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European Parliament and Council, DIRECTIVE 2009/24/EC on the legal protection of computer programs, 2009/24/EC, 23.04.2009

Type EU Directive
Legal context EU
Abstract
Link http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32009L0024&from=EN
Topics Intellectual Property, Technology, Interoperability

Notes

Article 6

Decompilation

1. The authorisation of the rightholder shall not be required where reproduction of the code and translation of its form within the meaning of points (a) and (b) of Article 4(1) are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met:

(a) those acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorised to do so;

(b) the information necessary to achieve interoperability has not previously been readily available to the persons referred to in point (a); and

(c) those acts are confined to the parts of the original program which are necessary in order to achieve interoperability.

2. The provisions of paragraph 1 shall not permit the infor- mation obtained through its application:

(a) to be used for goals other than to achieve the interoper- ability of the independently created computer program;

(b) to be given to others, except when necessary for the inter operability of the independently created computer program; or

(c) to be used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright.

3. In accordance with the provisions of the Berne Convention for the protection of Literary and Artistic Works, the provisions of this Article may not be interpreted in such a way as to allow its application to be used in a manner which unreasonably prejudices the rightholder's legitimate interests or conflicts with a normal exploitation of the computer program.

Article 6 may help us when the provider of an IoT product (software-embedded good sold + service provided) ceases to provide the service that makes the good usable: third parties are allowed to decompile the software embedded in the good in order to provide an alternative service. However, the problem is that decompilation is really expensive, and therefore it is unlikely that someone will take up the challenge, because it is less expensive to provide an entirely new product (this statement may be redimensioned in a situation in which the good is greatly distributed among the public).

Moving Beyond the Conflict Between Freedom of Contract and Copyright Policies: In Search of a New Global Policy for On-Line Information Licensing Transactions, p. 342, states that the provision of this exception is motivated by competition considerations.


See Court of Justice of European Union, Oracle v. UsedSoft, C-128/11, 03.07.2012.

See Commission, Report from the Commission to the Council, the European Parliament and the Economic and Social Committee on the implementation and effects of Directive 91/250/EEC on the legal protection computer programs, COM(2000) 199 final, 10.04.2000.

See ROGNSTAD O.-A., Legally Flawed but Politically Sound? Digital Exhaustion of Copyright in Europe after UsedSoft, Oslo Law Review, V. 1, i. 1, 2014.

See SMITH G.P., Shrink-Wrap Licences in Europe After the EC Software Directive, Computer Law Journal, V. 11, i. 4, 1992, 957.


Interpretation Speculations

Car-makers are shifting many car feature from hardware to software, and they state that this software is only licensed, not sold.

Car-makers often forbid the customer from fixing the software embedded in the car (and, thus, the car) by himself or trough independent repairers.

  • Irrespective of whether the software is licensed or sold, does art. 5(1), combined to Recital 13, deprive this contractual terms of validity?