The Brussels Court of Appeal recently confirmed the landmark decision UsedSoft v. Oracle of the European Court of Justice (ECJ).

In UsedSoft v. Oracle (C-128/11) (“UsedSoft decision”), the ECJ paved the way for what is being called “the second-hand market for immaterial copies”. Qualifying as a sale a non-exclusive licence of an unlimited period for which the price being paid is equivalent to the economic value of the copy of the software, the licence holder or licensee is able to freely transfer the licence he or she obtained after downloading software. The Brussels Court of Appeal has now confirmed the UsedSoft decision in its Straton IT-consulting v. Saga Consulting, RIcha and CTAC decision of 11 September this year.

Saga had bought from CTAC licences of an unlimited period, the latter acting as “reseller” of the software “Add-On licences” purchased from Straton. The Court of Appeal applied the criteria developed in the UsedSoft decision, stating: “[W]hen a client downloads a copy of a computer program, enters into a license agreement for the use of that copy, and - in return for the payment of a fee corresponding to the economic value of the copy of the work - obtains the right to use the copy for an unlimited period, the property of the concerned computer program will be transferred to him.” As the licence between CTAC and Saga was agreed for an unlimited period and CTAC qualified as a reseller, the licence therefore constituted a sale, implying that the distribution right had been exhausted.

Although the precise implications of the UsedSoft and Straton decisions for the future still remain unclear, both courts have now expressed a clear preference for the creation of a “second-hand market for immaterial copies”, which was not envisaged by the European legislator at first. There remains the question as to how this will affect the holders of copyrights as their freedom to contract has thus been limited.