The matter at hand
Top System develops computer programs and provides IT services. Top System has collaborated with SELOR, on whose behalf it provides IT development and maintenance services. SELOR is the public body, which is responsible in Belgium, for selecting and orienting the future personnel of the authorities’ various public services. Following SELOR’s integration into Beglium’s Policy and Support Federal Public Service, the Belgian State replaced that body as the defendant in the main proceedings.
At the request of SELOR, Top System developed several applications which contain functionalities originating from its framework software called ‘Top System Framework’ (‘the TSF’) and functionalities designed to meet SELOR’s specific needs. In 2008, operating problems affecting certain applications using the TSF occurred. Having failed to reach agreement with SELOR on the resolution of those problems, Top System brought an action against SELOR and the Belgian State before the tribunal de commerce de Bruxelles (Commercial Court, Brussels, Belgium) seeking, inter alia, a declaration that SELOR had decompiled the TSF, in breach of Top System’s exclusive rights in that software.
The case was referred to the tribunal de première instance de Bruxelles (Court of First Instance, Brussels, Belgium) which, in essence, dismissed Top System’s application. Top System brought an appeal against that judgment before the referring court, the cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium). Top System submits that SELOR unlawfully decompiled the TSF. Top System took the view that decompilation can be carried out only with the authorisation of the author, the successor in title of that author, or for interoperability purposes. On the other hand, decompilation is not permitted for the purpose of correcting errors affecting the functioning of the program concerned. SELOR submits, inter alia, that it was entitled to carry out that decompilation in order to correct certain design errors affecting the TSF, which made it impossible to use that software in accordance with its intended purpose.
The referring court asks whether Article 5(1) of Directive 91/250Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs must be interpreted as meaning that the lawful purchaser of a computer program is entitled to decompile all or parts of that program in order to correct errors affecting the operation of that program, including where the correction consists in disabling a function that is affecting the proper operation of the application of which the program forms a part. By its second question, the referring court asks whether Article 5(1) of Directive 91/250Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs must be interpreted as meaning that the lawful purchaser of a computer program who wishes to decompile that program in order to correct errors affecting its operation must satisfy the requirements laid down in Article 6 of that directive or other requirements.
The judgment of the ECJ
The ECJ preliminary remarks that a computer program is initially written in the form of a ‘source code’ in a comprehensible programming language, before being transcribed into a functional form that the computer can understand, that is to say, into the form of an ‘object code’, by means of a specific program called the ‘compiler’. The process of transforming the source code into the object code is called ‘compilation’. Conversely, ‘decompilation’ is intended to reconstruct the source code of a program from its object code.
Consequently, the ECJ stated that the decompilation of a computer program involves the performance of acts, namely the reproduction of the program code and the translation of the form of that code, which in fact come within the exclusive rights of the author, as defined in Article 4(a) and (b) of Directive 91/250Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs. It follows that Article 5(1) of Directive 91/250Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs must be interpreted as meaning that the lawful purchaser of a program is entitled to decompile that program to correct errors affecting the functioning of that program.
This interpretation is not called into question by Article 6 of Directive 91/250Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs which cannot be interpreted as meaning that the only permitted decompilation of a computer program is that effected for interoperability purposes. According to the ECJ, it is apparent from that division that the EU legislature intended to limit the scope of the exception for interoperability to circumstances in which the interoperability of an independently created program with other programs cannot be carried out by any other means, but only by means of decompilation of the program concerned. It cannot be inferred that the EU legislature intended to exclude any possible reproduction of the code of a computer program and the translation of the form of that code other than where those acts are carried out in order to obtain the information necessary to achieve the interoperability between an independently created computer program and other programs. Thus, as regard to the first question, the ECJ held that ‘’the lawful purchaser of a computer program is entitled to decompile all or part of that program in order to correct errors affecting its operation, including where the correction consists in disabling a function that is affecting the proper operation of the application of which that program forms a part’’ (paragraph 53).
Furthermore, the ECJ stated that the lawful purchaser of a computer program who wishes to decompile the program in order to correct errors affecting the operation is not required to satisfy the requirements laid down in Article 6 of that directive, as the exception laid down in Article 6 of Directive 91/250Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs has a different scope and purpose to that laid down in Article 5(1) thereof. However, that purchaser is entitled to carry out such a decompilation only to the extent necessary to effect that correction and in compliance, where appropriate, with the conditions laid down in the contract with the holder of the copyright in that program.