The distribution of software in the European Union after the decision of the CJEU 'UsedSoft GmbH v. Oracle International Corp.' ('UsedSoft')

• Author: Lazaros G. Grigoriadis
• Position: Aristotle University of Thessaloniki, Faculty of Law, Department of Commercial and Economic Law
• Pages: 198-205

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Lazaros G. Grigoriadis

Aristotle University of Thessaloniki

Faculty of Law, Department of Commercial and Economic Law

LazGrigoriadis@yahoo.gr ; lgrigoriadis@law.auth.gr.

Abstract: In “UsedSoft GmbH v. Oracle International Corp.”, the Europeam Court

of Justice opened the way for the sale of "second-hand software" across Europe. The

decision UsedSoft gives rise to new d ata in terms of t he content of the rig ht of di stribution

of a work, including the copy of a computer program, and the issue of exhaustion of the

right of distribution of a copy of a computer program. The decision is expected to affect

radically the functioning of the EU market of computer progra ms.

1. Introduction

The 3

rd

of July 2012 marked the beg inning of a new era for the distribution of computer program copies

on the internet. On that day, the Court of Justice of the European Union (CJEU) delivered its decision in

Case “UsedSoft GmbH v. Oracle International Corp”, taking position on the issue regarding the re sale of

a copy of a computer program downloaded from the internet, which until then remained unanswered.

2. The legal framework

Pursuant to Art. 4 (2) of Directive 200 9/24/C

1

, “The first sale in the Community of a co py of a program

by the rightholder or with his co nsent shall exhaust the distribution right within the Community of that

copy, with the exception of the right to control further rental of the pro gram or a copy thereof.”

In the light of the above provision, which lays down the principle of t he EU exhaustion of the

distribution right of a copy of a computer program, a nd based on the theory regarding the content of t he

right of distribution of a work

2

, it becomes unquestionable that the owner of the copyright of a computer

1

Directive 2009/24/C of the European Parliament and of the Council of 23 April 2009 on the legal protection of

computer programs (Codified version) (OJ L 111/16, 05.05.2009).

2

According to the dominant view, the terms “original” and “copy” of a work that are used in Article 4 of Directive

2001/29/C (Distribution right) are exclusively referring to works that have been incorporated into permanent

material media and can circulate as tangible good s. For more about the right of distribution of the original or the

copies of a work in the light of Directive 2001/29/C see Anna Despotidou, The Economic Rights of the Author

Pursuant to Art. 3 (1) of Law 2121/1993, in ICHAIL-THEODOROS MARINOS (ed.), INFORMATION

SOCIETY AND COPYRIGHT, THE GREEK RE GULATION, Ant. Sakkoulas, Athens – Komotini 2003, 11, 47-50,

with further references (in Greek); Anthoula Papadopoulou, The Intellectual Creation in the Place and Time of the

Internet – Th e Directive 2001/29/EU for th e Information Society, 12 Business & Company Law 12 12, 1220 (2002),

1212, 1220 (in Greek); DIONYSIA KALLINIKOU, COPYRIGHT AND THE INTERNET DIRECTIVE 2001/29/EC,

P.. Sakkoulas, Athens 2001, 61-63 (in Greek); Gerald Spindler, Europäisches Urheberrecht in der

Informationsgesellschaft, GRUR 2002, 105, 109; Jörg Reinbothe, Die EG-Richtlinie zum Urheberrecht in der

Informationsgesellschaft, GRUR Int. 2001, 733, 737; ichail-Theodoros Marinos, Absolute and exclusive powers as

a subject of harmonization pursuant to Directive 2001/29/EC, in ICHAIL-THEODOROS MARINOS (ed.),

INFORMATION SOCIETY AND COPYRIGHT, THE GREEK REGULATION, Ant. Sakkoulas, Athens –

Komotini 2001, 29, 51-52 (in Greek). This opinion could, in principle, be considered to be valid in the sense of the

term “copy” of Art. 4 o f Directive 2009/24/ (Distribution right), since, according to the case-law o f the CJEU, the

terms used in Directives 2009/24/C and 2001/29/C must, in principle, have the same meaning. See Case C-403/08

and C-429/08, “Football Association Premier League Ltd and others v. QC Leisure and others (C-403/08) and Karen

Murphy v. Media Protection Services Ltd (C-429/08)”, of the 04.10.2011, unpublished, paras 187-188.