European copyright law is fully harmonized, which means that the relevant provisions of German copyright law must be interpreted in such a way that they are in line with the corresponding provisions of European copyright law. This decision of the ECJ is therefore also of interest for the German market.
The issue was that a company had decompiled software in order to eliminate errors. The software had been duly purchased. Attempts to reach an agreement with the licensor to remove the errors had previously failed. The licensee therefore decompiled the purchased software. The licensor filed an action for a declaratory judgment against this, the content of which was to establish that the decompilation was unlawful.
Copyright law always functions structurally in such a way that it grants the owner of the rights certain prohibitive rights. The latter can demand that any third party refrain from doing things if the law provides him with the corresponding prohibition rights. These prohibition rights arise in the person of the programmer and are automatically transferred to the employer at the moment they arise, Section 69b UrhG or, if the software is created or edited by subcontractors or managing directors, are then transferred to the client by means of agreements on the transfer of rights of use. These prohibition rights include the right to demand that anyone else edit or modify the source code. In German law, this concerns Section 69c No. 2 UrhG, which implements the provision of Art 4 lit. b. Directive 91/250 of the European Union.
In principle, the software company has the right to prohibit others from editing the software or having it edited.
However, copyright law also states that these prohibition rights are not unlimited. This is referred to as the limits of copyright rights. The holder of the prohibition rights cannot prohibit certain things. Example: In principle, software may only be reproduced (i.e. a copy made) with the consent of the rights holder, § 69c no. 1, but exception § 69d para. 1: Anyone who has purchased a computer program may also make a backup copy without the consent of the rights holder. You therefore do not need the explicit consent (license) of the licensor.
And copyright law goes even further: not only do you not need a license for the act in certain cases, the rights holder cannot prohibit certain acts at all.
The ECJ has now established what German lawyers had long assumed: The right to decompile a software exists even against the express prohibition of the rights holder, because if the decompilation serves to correct an error. Regardless of what is written in Eulas or the like: you can decompile if the purchased software contains errors.
The ECJ first states that the use of a compiler ensures that the software is reproduced again for technical reasons (a copy is made) and then asks whether the making of this copy without the will of the rights holder is lawful: Yes (para. 40).
According to Art 5 of Directive 91/250 EU, the lawful acquirer of a program may carry out all acts mentioned in Art 4 lit. a and lit. b, which consist in the making of a copy or translation of the program, without the consent of the rights holder. It follows from the wording of Art 6 in conjunction with recitals 19 and 20 of Directive 91/250 that decompilation may not only be carried out in order to create an interface, as the wording suggests, no: the lawful acquirer may also decompile a program if the purpose is to eliminate errors.
If you read this as a German lawyer, you realize that you can use many sentences and words to state the obvious: the elimination of errors must not fail because you have to decompile the software. In this regard, the ECJ states (para. 57): Decompilation must be necessary in order to eliminate the error. This is not the case if the source is available. It is interesting - and this will be reflected in German case law - that the ECJ says that this is not about defects, but about errors. It is therefore not just about malfunctions that are culpably caused by the IT company during the warranty period, but about malfunctions in general. The error must prevent the program from being used as intended.
However, the ECJ emphasizes that it must be possible for the parties to contractually determine the modalities of error correction (para. 67). A right to decompile therefore does not exist if the IT company has undertaken to maintain the software. Without such a contractual obligation, however, decompilation is possible. Anything other than a bug fix is not permitted, meaning that the bug fix may not be published.
The problem for the IT companies, however, begins where the customer can now decompile the object code using another company in order to rectify errors.
