Court of Justice allows decompilation of software to correct errors

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

BACK TO OVERVIEW