The ECJ today published a decision on the Enforcement Directive, which deals with rules of conduct in license agreements.

The decision of the ECJ

Accordingly, Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights and Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs must be interpreted as meaning that the infringement of a clause in a license agreement for a computer program which relates to the industrial property rights of the owner of the copyright in that program is covered by the term ‘intellectual property rights’. April 2009 on the legal protection of computer programs must be interpreted as meaning that the infringement of a clause in a licence agreement for a computer program which affects the industrial property rights of the proprietor of the copyright in that program falls within the concept of ‘infringing industrial property rights …’ within the meaning of Directive 2004/48 and, consequently, that the proprietor is entitled to benefit from the guarantees provided for in that directive, irrespective of the liability regime applicable under national law.

The original complaint

By a contract dated August 25, 2010, as amended by an addendum dated April 1, 2012, the plaintiff granted the defendant a license and a maintenance contract for a software package called ClickOnSite, a software package for centralized project management, which was intended to enable the defendant to organize and track in real time the development of the deployment of its cellular antennas by its teams and its external technical service providers.

The original complaint addressed the issue that the defendant had modified the software by, among other things, creating new forms. As justification for the fact that the defendant was not entitled to make what the plaintiff considered to be essential changes, the plaintiff claimed, among other things, that the customer was expressly prohibited from doing so under Article 6 (“Scope of License”) of the license agreement, directly or indirectly reproduce the software package, decompile it and/or perform reverse engineering measures on it, as well as modify, correct or adapt the software and directly or indirectly create secondary and supplementary works in relation to this software.

In its judgment of January 6, 2017, the French court declared the asserted tort liability claims inadmissible. The court held that in intellectual property there would be two separate liability regimes, one of which would be tortious in nature and apply to the infringement of the statutory rights of use of the author of the software, while the other would be contractual in nature and apply to the infringement of a contractually reserved copyright. In the present case, the defendant would not be accused of tortious acts in the form of infringement relating to the software, but of breaches of its contractual obligations, which would have to be asserted by means of an action for contractual liability.

Conclusion

However, on the basis of a reference from the Court of Appeal, the ECJ held that Directives 2004/48 and 2009/24 must be interpreted as meaning that the infringement of a clause in a license agreement for a computer program which concerns the industrial property rights of the owner of the copyright in that program may be invoked by the owner irrespective of the liability regime applicable under national law.

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