In the Case C-166/15, decided on the 12th of October, the Court said that where the original, initial copy delivered was, however, damaged, destroyed or lost, then in that case the initial acquirer may not provide his back-up copy of the programme to the new acquirer without the prior authorisation of the right-holder.
In this particular case, it was alleged that the defendants unlawfully sold more than 3,000 copies of Microsoft copyright-protected computer programmes, resulting in material damage caused to Microsoft evaluated at €265,514.
The CJEU considered that it follows from the rule of exhaustion of the distribution right, that once a copyright-holder sells, in the EU, a copy of the programme on a material medium, with an unlimited user licence, then he cannot oppose the subsequent resale of that copy. This notwithstanding the existence of contractual terms prohibiting further transfer.
Moreover, it said that the backing-up of a computer programme is subject to two conditions. Firstly that the copy must be made by a person having a right to use that programme and the secondly such copy must be necessary for that use.
The Court concluded that the Directive on the Legal Protection of Computer Programmes must be interpreted as meaning that, although the initial acquirer of a copy of a computer programme accompanied by an unlimited user licence is entitled to resell that copy and his licence to a new acquirer, he may not, however, in the case where the original material medium of the copy that was initially delivered to him has been damaged, destroyed or lost, provide his back-up copy of that programme to that new acquirer without the authorisation of the right-holder.