The Belgian Court of Appeal has referred two questions to the CJEU, asking whether decompilation is permitted under Article 5(1) of the Software Directive (91/250/EEC) (which provides that the right holder’s exclusive rights to undertake certain acts in respect of a computer program under Articles 4(a) and (b) do not require authorisation from the right holder where they are necessary for the use of a computer program by the lawful acquirer) for the purpose of correcting errors affecting a program’s function, or whether decompilation is only permitted in the situations set out in Article 6 (which specifically allows decompilation in certain circumstances only). If decompilation for error correction is permitted under Article 5(1), the Court of Appeal has also asked whether the conditions set out in Article 6 must be satisfied.

In an Opinion only recently published in English, Advocate General Szpunar noted that under Article 5(1), acts carried out by the lawful acquirer of a computer program in the context of using that program are not subject to the rights holder’s exclusive rights “in the absence of specific contractual provisions”. Therefore, where there is no contract, the lawful acquirer of a computer program is free to carry out acts subject, as a rule, to the rights holder’s exclusive rights, provided that the program in question continues to be used in accordance with its intended purpose, which includes the correction of errors.

Further, the AG said, Article 5(1) treats all the acts listed in Articles 4(a) and (b) in the same way. Therefore, there is no scope for interpretation which would allow certain acts, e.g. the correction of errors, to be exempted from the rights of the lawful acquirer in the absence of contractual provisions.

In addition, the contract between the parties in this case did not restrict the correction of errors in the computer programs concerned. Therefore, the defendant was entitled to correct errors under Article 5(1).

The question was, therefore, whether Article 5(1) permits the act of decompilation as a way of correcting errors.

The AG noted that according to case law, both the source code and the object code are two forms of expression of the same computer program and both are protected under the Directive. Further, decompilation consists of transforming the program from object code into “quasi-source code”; that “quasi-source code” is essentially a reproduction of the program. Such reproduction is expressly subject to the exclusive right of the program’s author pursuant to Article 4(b). In addition, Article 6(1) refers to the “reproduction of the code and translation of its form within the meaning of Article 4(a) and (b)” (emphasis added).

Accordingly, the AG opined that decompilation of a computer program falls within the scope of the exclusive rights of the author as set out in Articles 4(a) and (b). It was entirely logical, the AG said, that it must necessarily also fall within the scope of Article 5(1). Accordingly, the AG advised the CJEU to hold that Article 5(1) should be interpreted as permitting a lawful acquirer of a computer program to decompile that program where it is necessary to correct errors affecting its functioning.

As for Article 6, the AG noted that it is independent from Article 5. Therefore, the Article 6 requirements cannot apply, directly or indirectly, to the exception set out in Article 5(1).

However, that did not mean that Article 5(1) was not subject to other applicable requirements. Article 5(1) itself provides that the act in question (i.e. decompilation in this case) must be necessary for that program to be used in accordance with its intended purpose, including error correction.

Further, the AG said, the intervention of the user of the computer program must be necessary from the perspective of the objective pursued. The question is therefore whether and to what extent the decompilation of the program is necessary to correct errors in it.

The issue in this case, however, was not the need to decompile the program in order to correct errors, but the condition for the application of Article 5(1), i.e. the absence of contractual provisions precluding it.

The AG said that it was for the national court to determine the exact contractual rights and obligations of the parties, but in his view, if there is no restriction on error correction in the contract, then the lawful acquirer is free to carry out the acts in Articles 4(a) and (b), including decompilation, where it is necessary to correct errors. In fact, in the AG’s view, the lawful acquirer of a computer program is entitled, under Article 5(1), to decompile the program to the extent necessary, not only to correct an error in the strict sense, but also to locate that error and the part of the program that has to be amended.

Accordingly, the AG opined that Article 5(1) should be interpreted as meaning that the decompilation of a computer program, pursuant to that provision, by a lawful acquirer, in order to correct errors in that program, is not subject to the requirements of Article 6. However, such decompilation may be carried out only to the extent necessary for that correction and within the limits of the acquirer’s contractual obligations. (Case C-13/20 Top System SA v Belgian State EU:C:2021:193 (10 March 2021) (Opinion of Advocate General) — to read the Opinion in full, click here).