The latest developments in Case C-103/11 P pending before the Court of Justice of the European Union (the Court) may limit the rights of the owners of computer programs to restrict user access to modify programs by assigning the task to a third party. The case also relates to interpretation of the exclusive right of the rightholder to do or to authorise alteration of a computer program provided for in Directive 91/250/EEC (Directive) on the legal protection of computer programs.

Six months ago, the Court of Justice of the European Union essentially sanctioned   the   resale    of    used     software    licences.     Now, on 15 November 2012, the Advocate General in the case presented the Court with his conclusion regarding modification of a licensed program to expand its features.

The Advocate General disagreed with the interpretation of Directive by the General Court, according to which the rightholder must authorise adaptation or any other alteration to the program in order to allow a third party to modify a program. In the words of the Advocate General, the exclusive right of the author should not be interpreted as prohibiting a legitimate acquirer of the program from entrusting a third party, i.e. another IT company, with making program modifications. According to the Advocate General, this would help to ensure compatibility of an independently created program with other programs or to connect all components of a computer system, including those of different manufacturers, so that they can work together.

This is the first time that the Court will clarify the scope of an exception provided for in the Directive as regards the exclusive right of the holder of a copyright in a computer program to modify or to authorise another person to modify the program of the rightholder. Using arguments based on licence conditions and trade secrets, copyright holders of computer programs generally prohibit program users from hiring third parties for the purpose of expanding the features of a program, indicating in licences that they are the only ones authorised to make these program modifications and expand program features. Should the Court accept this interpretation by the Advocate General, the rightholders of computer programs will not be able to prohibit program users from hiring other IT companies to make program modifications and expand program features.

The Court intends to hand down its final ruling on this case next year.