Source: EURLEX
Language: en
Format: md

Case C‑166/15

Criminal proceedings

against

Aleksandrs Ranks

and

Jurijs Vasiļevičs

(Request for a preliminary ruling

from the Rīgas apgabaltiesas Krimināllietu tiesu kolēģija)

‛Reference for a preliminary ruling — Intellectual property — Copyright and related rights — Directive 91/250/EEC — Article 4(a) and (c) — Article 5(1) and (2) — Directive 2009/24/EC — Article 4(1) and (2) — Article 5(1) and (2) — Legal protection of computer programs — Resale of ‘used’ licensed copies of computer programs on non-original material media — Exhaustion of the distribution right — Exclusive right of reproduction’

Summary — Judgment of the Court (Third Chamber), 12 October 2016

1. Questions referred for a preliminary ruling — Jurisdiction of the national court — Assessment of the necessity and the relevance of the questions referred

   (Art. 267 TFEU)
2. Questions referred for a preliminary ruling — Admissibility — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer

   (Art. 267 TFEU)
3. Approximation of laws — Copyright and related rights — Directive 91/250 — Legal protection of computer programs — Acts subject to restrictions — Exclusive distribution right — Exhaustion of the right to distribute a copy of a computer program — Conditions — Sale of the copy in the European Union by the rightholder — Broad interpretation — Resale of the used licenced copy of a computer program — Included

   (Council Directive 91/250, Art. 4(a) and (c))
4. Approximation of laws — Copyright and related rights — Directive 91/250 — Legal protection of computer programs — Acts subject to restrictions — Exclusive right of reproduction — Exceptions — Making a back-up copy of a computer program — Conditions — Restrictive interpretation — Resale of the used licenced back up copy of a computer program — Precluded without the authorisation of the rightholder

   (Council Directive 91/250, Arts 4(a), 5(2) and 9(1))
5. Approximation of laws — Copyright and related rights — Directive 91/250 — Legal protection of computer programs — Special protection measures — Possession for commercial purposes and putting into circulation of infringing copies of computer programs

   (Council Directive 91/250, Art. 7(1)(a) and (b))
6. Approximation of laws — Copyright and related rights — Directive 91/250 — Legal protection of computer programs — Acts subject to restrictions — Exclusive right of reproduction — Exceptions — Reproduction necessary for the use of the computer program in accordance with its intended purpose — Downloading a copy of a computer program from the rightholder’s website — Included

   (Council Directive 91/250, Art. 5(1))
7. Approximation of laws — Copyright and related rights — Directive 91/250 — Legal protection of computer programs — Acts subject to restrictions — Scope — Resale of used licensed copies of computer programs — Lawfulness — Conditions — Destruction of any other copy possessed — Possibility for the initial acquirer to transfer his back-up copy of that program to the new acquirer — Limits — Need for the rightholder’s authorisation — Possibility for the new acquirer to download a copy of the computer program from the rightholder’s website — Reproduction necessary for the use of the computer program in accordance with its intended purpose

   (Council Directive 91/250, Arts 4(a) and (c) and 5(1) and (2))

1. See the text of the decision.

   (see para. 21)
2. See the text of the decision.

   (see para. 22)
3. See the text of the decision.

   (see paras 26-36)
4. See the text of the decision.

   (see paras 37-44)
5. See the text of the decision.

   (see para. 46)
6. See the text of the decision.

   (see paras 48-50)
7. Article 4(a) and (c) and Article 5(1) and (2) of Directive 91/250 on the legal protection of computer programs must be interpreted as meaning that, although the initial acquirer of a copy of a computer program accompanied by an unlimited user licence is entitled to resell that copy and his licence to a new acquirer, he may not, however, in the case where the original material medium of the copy that was initially delivered to him has been damaged, destroyed or lost, provide his back-up copy of that program to that new acquirer without the authorisation of the rightholder.

   The lawful acquirer of the copy of a computer program, who holds an unlimited licence to use that program but who no longer has that original material medium on which that copy was initially delivered to him, because he has destroyed, damaged or lost it, cannot, for that reason alone, be deprived of any possibility of reselling that copy to a third party, since this would render ineffective the exhaustion of the distribution right under Article 4(c) of Directive 91/250.

   Thus, the lawful acquirer of an unlimited licence for the use of a used copy of a computer program must be able to download that program from the copyright holder’s website, since that downloading constitutes a reproduction of a computer program that is necessary to enable the new acquirer to use the program in accordance with its intended purpose.

   However, the initial acquirer of the copy of the computer program — in respect of which the copyright holder’s distribution right is exhausted in accordance with Article 4(c) of Directive 91/250 — who resells that copy must, in order to avoid infringing that rightholder’s exclusive right of reproduction of his computer program, laid down in Article 4(a) of that directive, make any copy in his possession unusable at the time of its resale.

   (see paras 53-55, 57, operative part)

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