Licensees of computer programs are, in certain circumstances, permitted to decompile the code of the computer program if necessary for e.g. correcting errors without the copyright holder’s consent.
On 6 October 2021 the
European Court of Justice ruled (C-13/20) that licensees of
computer programs are, in certain circumstances, permitted to decompile the
code of the computer program if necessary for e.g. correcting errors without
the copyright holder’s consent and this does not constitute an infringement
upon the exclusive rights of the copyright holder.
Background
Top System, a Belgian
company specialised in software development and maintenance services, had a longstanding
collaboration with Selor, a Belgian public body responsible for selecting and
orienting the future personnel of various public services.
In this regard, Top System
had developed several applications commissioned by Selor. While the copyright
arising out of these applications remained with Top System, Selor was granted a
license to use the applications.
After the installation and
configuration of a new development environment, operating problems appeared
that affected the functioning of certain applications. Since parties could not
reach an agreement on how to solve these problems, Selor took matters into its
own hands and decompiled the developed computer program and fixed the problems
on its own.
According to Top System
this act of decompilation infringed its exclusive rights as the copyright
holder of the computer program concerned.
Since the Belgian court was
uncertain whether the process of decompilation is permitted without the consent
of the right holder, it referred the matter to the Court of Justice.
Decision
Exclusive rights and exceptions
The ECJ starts its reasoning by clearly indicating
which exclusive rights the Computer Programs Directive grants to the copyright
holder. Firstly, the right holder has the exclusive right to make or authorise
the permanent or temporary reproduction of the computer program. Secondly, the
right holder has the exclusive right to make or authorise the translation,
adaptation, arrangement and any other alteration of the computer program and
the reproduction of the results thereof.
However, at the same time, the ECJ emphasises that
these exclusive rights are not absolute and are limited by exceptions. According
to one of these exceptions, the lawful purchaser of the computer program has
the possibility to perform acts belonging exclusively to the right holder
without the authorisation of the right holder if they are necessary to use the
computer program for its intended purpose, including for the correction of
errors.
Process of decompilation
In order to know whether the process of decompilation
falls within the mentioned exception, it is relevant to consider what exactly
the decompilation of a computer program means.
In most cases, the lawful purchaser of a computer
program only has access to the object code of a computer program. However, in
order to be able to change the computer program (and to correct errors), one
needs access to the source code. This can be done by decompiling the object
code.
Important to note is that this process of
decompilation does not generally give access to the original source code, but
to a third version of the program called the quasi-source code. This
quasi-source code can then in turn be compiled into an object code, allowing
the computer program to function.
It follows that the process of decompilation consists
of an alteration of the computer program’s code, which involves the act of
reproducing the code and the act of translating the form of the code. It is
clear that these acts are part of the exclusive rights of the right holder.
However the ECJ concludes that these acts (and thus
decompiliation as such) can be executed by the lawful purchaser of the computer
program without the authorisation of the right holder if this is necessary to
use the computer program for its intended purpose, e.g. for correcting errors.
Necessity of decompilation for intended use of the
software
The necessity of the decompilation can be explained as
follows. Decompilation will only be necessary if one has no access to the
source code. If the lawful purchaser, on the other hand, already has access to
the source code due to contractual arrangements, the decompilation will not be
necessary, and thus not be allowed.
According to the Court of Justice errors must be
understood as defects affecting a computer program which is the cause of the
malfunctioning of that program.
Taking this into account, it is relevant to point out
as well that the result of the decompilation of the computer program can only
be used for the correction of the errors and not for any other purpose, such as
adding other applications to the computer program.
Furthermore, the ECJ notes that, although the right
holder does not have the right to contractually exclude the possibility of the
lawful purchaser to perform these acts of decompilation, the right holder and
the lawful purchaser do have the right to make contractual arrangements
regarding the act of decompilation by the lawful purchaser, more specifically
regarding the execution of the decompilation. The Court even advises them to
make these contractual arrangements in order to avoid disputes.
Conclusion
This judgment assures lawful purchasers of software of
the right to correct errors in software themselves, without having to ask the
authorisation of the right holder. It does not, however, allow lawful
purchasers of computer programs to decompile computer programs as they wish and
for purposes other than for the intended use of the software. It further
invites IT companies to contractually regulate the exercise of the possibility
of decompilation in order to avoid discussions and disputes in the future.
22 October 2021