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Tuesday, 2 June 2015

It's a crime -- or might be, as another software exhaustion case heads for Luxembourg

Civil law is civil law, while criminal law is criminal -- and never the twain shall meet. Well, no. You can't have one without the other, to the extent that civil law is the basis for deciding entitlements to property, tangible or intangible, whose owners the the criminal law seeks to protect. That's why it may be important to know a bit more about the underlying policy of harmonised European law which, while addressing the civil law, has consequences for criminal law too.

The Court of Justice of the European Union (CJEU) has been asked to give preliminary rulings on two questions referred to it by the Rīgas apgabaltiesas Krimināllietu tiesu kolēģija - Latvia in Case C-166/15 Ranks et Vasiļevičs.  By way of scanty background [which is still better than nothing, but do readers know any more about the Latvian litigation?] the Kats can report that this reference concerns the legal protection of computer programs: as the UK Intellectual Property Office (UKIPO)succinctly summarises it, "The criminal defendants allegedly sold various copyright protected products which, as computer program, are protected as literary works".

The questions which have been referred for a preliminary ruling look like this:

1.    Under Articles 5(1) and 4(2) of Directive 2009/24 [the so-called Software Directive, which does not address criminal law and doesn't even contain the word "criminal"]... may a person who has acquired a computer program with a ‘used’ licence on a non-original disk, which works and is not used by any other user, rely upon the exhaustion of the right to distribute a copy of that computer program, the first purchaser of which acquired it from the rightholder with the original disk, which however has been damaged, when the first purchaser has erased his copy and no longer uses it?

2.    If the answer to the first question is in the affirmative, then, does a person who may rely upon the exhaustion of the right to distribute a copy of the computer program have the right to resell that computer program on a non-original disk to a third person, in accordance with Articles 4(2) and 5(2) of Directive 2009/24?

Following earlier CJEU rulings in Cases C-128/11 UsedSoft [see Eleonora here],and Case C-419/13 Art & Allposters [see Tom here], readers might be forgiven for thinking that the national courts in the European Union would soon be running out of questions concerning exhaustion of copyright to ask the Union's top court. But don't worry: even if a court asks a question and gets a ruling, it's entitled to ask the same question again -- and there's always a chance that the CJEU will change its mind. 

If you can't get the CJEU to change its mind, or even to make its mind up, never mind -- you still have some small opportunity to influence the outcome of events.  Tell the UKIPO what you think and you may be able to persuade the UK government to enter the proceedings. Who knows what might happen then!  To achieve this objective, just email by 9 June 2015 and have your say.


TreatyNotifier said...

The Dutch government has already a translation in Dutch.... No idea if something is available in English, it is better than nothing I guess...

Atis Gailis said...

That document in Dutch seems the best source there is. Couldn't find anything in Latvian on this case. It seems to be an old criminal case (2001) about selling software through eBay. Seems to be straight-forward software piracy case where defendant made a twist.
In case you wish to explore Latvian laws, here is link:

Anonymous said...

Each Member State will have received a translation into their own language(shortened for all languages other than French) from the Court.Only the French translation from the original language (in this case Latvian)will be a full translation (Please this is not intended to prompt an IPKAT tirade about "English only Europe cos practitioners in the rest of the world don't speak anything else" -the Court is still a largely French language institution.

The UK -or at least the UKIPO as it is not clear if this is done in other areas of law- remains the most transparent MS when it comes to their practice of publishing and inviting comments. Get them out of the EU -we can't have that.

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