Time to decompile your software agreement!

On March 10, Advocate General Szpunar delivered his Opinion in Top System (C-13/20). This Opinion follows a request for a preliminary ruling by the Brussels Appeal Court in an appeal procedure in which a Belgian computer programming company challenged the decompiling of its proprietary software by another company.

Besides his clear and comprehensible explanation of the concepts ‘object code’, ‘source code’ and ‘decompilation’ (§5 and §§39-40), the Advocate General (AG) provided some insightful key-take-aways in relation to decompilation for the purpose of error correction.

In his opinion, AG Szpunar advises the European Court of Justice to rule that article 5(1) of the Computer Programs Directive (91/250/EEG) allows the lawful acquirer of software to decompile the object code into source code for the purpose of error correction.

However, the more important take-away is the AG’s recurring reference to the fact that such decompilation may only be carried out within the boundaries of the contractually set limits and obligations. It therefore follows, that it is possible to contractually derogate from this decompilation right for the lawful acquirer of software and for the rightholder in the software to exclusively retain his right of correction (through decompilation).

It remains to be seen whether the European Court of Justice will follow the Opinion of its AG. Nevertheless, this Opinion is once again a clear confirmation of the need to carefully negotiate agreements relating to software-commercialization.

Please do not hesitate to contact us, should you wish any guidance relating to IP/ICT-commercialization and contract drafting.

AG Szpunar’s Opinion can be read here: http://curia.europa.eu/juris/document/document.jsf?text=&docid=238707&pageIndex=0&doclang=NL&mode=req&dir=&occ=first&part=1&cid=4501081 (available in Dutch and French at the time of publication).