ECJ ruling on selling back-up copies of software

The ECJ has given a preliminary ruling in the case of Ranks and Vasiļevičs on a referral from a Latvian court concerning the resale of back-up copies of software programs.

In a case involving copyright infringement offences relating to the sale online of more than 3,000 physical copies of Microsoft software programs, the ECJ addressed the issue of whether reselling back-up copies of software amounts to copyright infringement. 

The ECJ found that where the initial acquirer of a physical copy of a computer program is entitled to resell that copy to a new acquirer, it must be the original physical copy of the computer program that is in fact sold.  If, for example, the original physical copy of the computer program has been damaged, destroyed or lost, a back-up copy of that program must not be resold in its place without the authorisation of the rights-holder.

A physical back-up copy of software can therefore only lawfully be made available and used by the person having the right to access and use the program to which it relates.  Accordingly, that person could not use the back-up copy to resell the program to a third party, even if the original copy had been damaged, destroyed or lost. 

Whilst this ruling is not entirely surprising, it serves as a useful reminder that back-up copies of software can only ever serve the purpose of providing back-up to the original software program and cannot be commercially exploited independently.

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