The matter at hand

In the context of criminal proceedings in Latvia against two individuals charged with the unlawful sale – through an online marketplace – of used copies of computer programs stored on non-original media, the referring court asked whether the Computer Programs DirectiveDirective 2009/24/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights must be interpreted as meaning that the acquirer of a used copy of a computer program, stored on a non-original material medium, may, under the rule of exhaustion of the rightholder’s distribution right, resell that copy where (i) the original material medium of that program, acquired by the initial acquirer, has been damaged and (ii) that initial acquirer has erased his copy or ceased to use it.

The judgment of the ECJ

With reference to UsedSoft (C-128/11), the ECJ recalls that the holder of the copyright in a computer program who has sold, in the European Union, a copy of that program on a material medium, such as a CD-ROM or a DVD-ROM, accompanied by an unlimited licence for the use of that program, can no longer oppose the resale of that copy by the initial acquirer or subsequent acquirers of that copy (paragraph 30).

The ECJ, however, rules that this does not apply in the case where the original material medium is copied to another non-original material medium, which non-original medium is then resold, as the reproduction of a computer program on another medium constitutes a reproduction under Article 4(a) of the Computer Programs DirectiveDirective 2009/24/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights. Although Article 5(2) of that Directive does allow a person having a right to use a computer program to make a back-up copy, this exception to the reproduction right applies only in so far as this is necessary for the use of that program by that person. “It follows that a back-up copy of a computer program may be made and used only to meet the sole needs of the person having the right to use that program and that, accordingly, that person cannot — even though he may have damaged, destroyed or lost the original material medium — use that copy in order to resell that program to a third party” (paragraph 43).

Instead, in circumstances where the initial acquirer of an unlimited licence for the use of a computer program no longer has the original material medium on which that computer program was initially delivered to him, because he has destroyed, damaged or lost it, the subsequent acquirer of that licence must be enabled to download the program from the copyright holder’s website (paragraph 54), on condition that the initial acquirer makes any copy in his possession unusable at the time of its resale (paragraph 55).