Aleksandrs Ranks and Jurijs Vasiļevičs v Finanšu un ekonomisko noziegumu izmeklēšanas prokoratūra and Microsoft Corp.
Date: 2016-10-12
21


As to those submissions, it should be borne in mind that, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (see judgment of 12 October 2010, Rosenbladt, C‑45/09, EU:C:2010:601, paragraph 32 and the case-law cited).
22


It is settled case-law that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see judgment of 12 October 2010, Rosenbladt, C‑45/09, EU:C:2010:601, paragraph 33 and the case-law cited).
27


It follows from that provision that the exhaustion of the right to distribute the copy of a computer program is subject to two conditions: (i) the copy must have been placed on the market and, more specifically, sold by the rightholder or with his consent, and (ii) it must have been placed on the market in the European Union (see, by analogy, with regard to Article 4 of 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), judgments of 12 September 2006, Laserdisken, C‑479/04, EU:C:2006:549, paragraph 21, and of 22 January 2015, Art & Allposters International, C‑419/13, EU:C:2015:27, paragraph 31).
28


The Court has already held that the term ‘sale’ in that provision, which must be given a broad interpretation, encompasses all forms of marketing of a copy of a computer program characterised by the grant of a right to use that copy, for an unlimited period, in return for payment of a fee designed to enable the copyright holder to obtain a remuneration corresponding to the economic value of that copy (see, to that effect, judgment of 3 July 2012, UsedSoft, C‑128/11, EU:C:2012:407, paragraph 49).
30


It follows from the foregoing that, under Article 4(c) of Directive 91/250, the holder of the copyright in a computer program who has sold, in the European Union, a copy of that program on a material medium, such as a CD-ROM or a DVD-ROM, accompanied by an unlimited licence for the use of that program, can no longer oppose the resale of that copy by the initial acquirer or subsequent acquirers of that copy, notwithstanding the existence of contractual terms prohibiting any further transfer (see, to that effect, judgment of 3 July 2012, UsedSoft, C‑128/11, EU:C:2012:407, paragraph 77).
35


In that respect, it follows from the Court’s case-law that Article 4(2) of Directive 2009/24, which reproduces the content of Article 4(c) of Directive 91/250, refers, without further specification, to the ‘sale … of a copy of a program’ and thus makes no distinction according to the tangible or intangible form of the copy in question (see, to that effect, judgment of 3 July 2012, UsedSoft, C‑128/11, EU:C:2012:407, paragraph 55).
36


The Court concluded from this, in particular, that the exhaustion of the distribution right laid down in Article 4(2) of Directive 2009/24 takes effect after the first sale of a copy of a computer program in the European Union by the copyright holder or with his consent, regardless of whether the sale relates to a tangible or an intangible copy of that program (judgment of 3 July 2012, UsedSoft, C‑128/11, EU:C:2012:407, paragraphs 55 and 61).
42


That provision, laying down an exception to the exclusive reproduction right of the holder of the copyright in a computer program must, in accordance with the settled case-law of the Court, be interpreted strictly (see, by analogy, judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 109).
49


In that respect, it follows from the case-law of the Court that when an acquirer of a copy of a computer program purchases and downloads that copy from the rightholder’s website, this constitutes a reproduction which is authorised under Article 5(1) of Directive 91/250, since it is necessary for the use of the program by the lawful acquirer in accordance with its intended purpose (see, to that effect, judgment of 3 July 2012, UsedSoft, C‑128/11, EU:C:2012:407, paragraph 75).
50


The Court has also held that, in the event of a resale of the copy of the computer program purchased and downloaded by the first acquirer from the rightholder’s website, the new acquirer of that copy, who is a lawful acquirer within the meaning of Article 5(1) of Directive 91/250, is also entitled, under that provision, to download that copy onto his computer, since that download constitutes a reproduction that is necessary to enable him to use that program in accordance with its intended purpose (see, to that effect, judgment of 3 July 2012, UsedSoft, C‑128/11, EU:C:2012:407, paragraphs 80 and 81).
53


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 (see, to that effect, judgment of 3 July 2012, UsedSoft, C‑128/11, EU:C:2012:407, paragraph 83).
54


Thus, as Microsoft acknowledged in its written reply to the questions put to it by the Court, 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, as the Court held in the judgment of 3 July 2012, UsedSoft (C‑128/11, EU:C:2012:407, paragraph 85).
55


It must be borne in mind, however, that the initial acquirer of a copy of a 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, by analogy, judgment of 3 July 2012, UsedSoft, C‑128/11, EU:C:2012:407, paragraph 70 and 78).