Opinion of the Advocate General — ECLI:EU:C:2016:384
Date: 2016-06-01
Language of the case: Latvian
Subject matter: Intellectual, industrial and commercial property;Copyright and related rights
Procedure: Reference for a preliminary ruling
Origin: Latvia

summary, the solution adopted in the judgment in UsedSoft (26) covers the specific context of the sale of user licences for intangible copies of computer programs, which was not explicitly envisaged by the EU legislature when adopting Directive 91/250. Outside that specific context, it is appropriate to apply in a traditional way the provisions governing the exclusive rights of distribution and reproduction, in particular Articles 4 and 5 of Directive 91/250. E – The practical consequences of the proposed approach 81. The practical consequences of the approach which I am proposing to the Court are the following. 82. Where the original copy of a computer program, sold by the rightholder or with his consent, is incorporated in a material medium, only that original tangible copy benefits from the rule of exhaustion of the right of distribution. Moreover, the reseller of such a copy is required to make unusable any other copy in his possession, so as not to infringe the right of reproduction. Consequently, that approach would constitute a legal barrier to the emergence of a market for used non-original tangible copies of computer programs, but would not impede the emergence of such a market for original copies. 83. Where the original copy is not incorporated in a material medium, it is appropriate to apply the solution adopted by the Court in the judgment in UsedSoft (27) in order to preserve the effectiveness of the exhaustion rule. Thus, the right of distribution in respect of the intangible copy is exhausted if the rightholder has conferred, in return for payment of a fee intended to enable him to obtain a remuneration corresponding to the economic value of the copy of the work of which he is the proprietor, a right to use that copy for an unlimited period (paragraph 72). The reseller is also required to make any other copy in his possession unusable, so as not to infringe the right of reproduction (paragraphs 70 and 78). That solution allows the emergence of a market for used intangible copies of computer programs. VI – Conclusion 84. Having regard to all the foregoing considerations, I propose that the Court give the following answer to the questions referred by the Rīgas apgabaltiesas Krimināllietu tiesu kolēģija (Criminal Law Division of the Riga Regional Court): Article 4(a) and (c) and Article 5(1) and (2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, as amended by Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights, must be interpreted as meaning that the rightholder’s exclusive rights of reproduction and distribution are infringed where a copy of a computer program is made by a user, without the rightholder’s authorisation, on a material medium other than the original material medium and where that copy is sold, without the rightholder’s authorisation, by that user or another user, even in circumstances where: – the original material medium is damaged, and – the seller of that copy makes any other copy in his possession unusable. 1 – Language of the case: French. 2 – Judgment of 3 July 2012 (C‑128/11, EU:C:2012:407). 3 – See, in particular, judgment of 6 October 2015, Delvigne (C‑650/13, EU:C:2015:648, paragraph 36 and case-law cited). 4 – See, in particular, judgment of 6 October 2015, Delvigne (C‑650/13, EU:C:2015:648, paragraph 37 and case-law cited). 5 – Judgment of 3 July 2012 (C‑128/11, EU:C:2012:407). 6 – Judgment of 3 July 2012 (C‑128/11, EU:C:2012:407). 7 – Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10). According to Article 4(2) thereof, ‘the distribution right shall not be exhausted within the [European Union] in respect of the original or copies of the work, except where the first sale or other transfer of ownership in the [European Union] of that object is made by the rightholder or with his consent.’ (emphasis added). 8 – Judgment of 22 January 2015 (C‑419/13, EU:C:2015:27). 9 – Judgment of 22 January 2015 (C‑419/13, EU:C:2015:27). 10 – See point 36 of this Opinion. 11 – Judgment of 3 July 2012 (C‑128/11, EU:C:2012:407). 12 – See point 37 of this Opinion. 13 – See, to that effect, judgment in Zino Davidoff and Levi Strauss (C‑414/99 to C‑416/99, EU:C:2001:617, paragraph 54). The Court also held that Articles 34 and 36 TFEU do not preclude a national rule providing that the conditions for exhaustion must be established by the person who relies on it, except where such a rule enables the trade-mark owner to partition national markets. See, to that effect, judgment of 8 April 2003, Van Doren + Q (C‑244/00, EU:C:2003:204, paragraphs 35 to 42). 14 – Walter, M., and von Lewinski, S., European Copyright Law: A Commentary, Oxford University Press, Oxford, 2010, No 5.4.33: ‘Whoever alleges that the right of distribution with regard to a specific copy is exhausted, in principle, has to bear the burden of proof according to the general rules.’ 15 – Judgment of 3 July 2012 (C‑128/11, EU:C:2012:407). 16 – Judgment of 3 July 2012 (C‑128/11, EU:C:2012:407). 17 – Judgment of 3 July 2012, UsedSoft (C‑128/11, EU:C:2012:407, paragraph 53). 18 – Judgment of 3 July 2012, UsedSoft (C‑128/11, EU:C:2012:407, paragraph 59). 19 – Judgment of 3 July 2012, UsedSoft (C‑128/11, EU:C:2012:407, paragraph 72). 20 – Judgment of 3 July 2012, UsedSoft (C‑128/11, EU:C:2012:407, paragraphs 83 and 88). 21 – Judgment of 3 July 2012 (C‑128/11, EU:C:2012:407). 22 – Judgment of 3 July 2012 (C‑128/11, EU:C:2012:407). 23 – Judgment of 3 July 2012 (C‑128/11, EU:C:2012:407). 24 – Judgment of 3 July 2012 (C‑128/11, EU:C:2012:407). 25 – See points 36 and 37 of this Opinion. 26 – Judgment of 3 July 2012 (C‑128/11, EU:C:2012:407). 27 – Judgment of 3 July 2012 (C‑128/11, EU:C:2012:407).