The following TMT Q&A produced in partnership with Chris Thomas and Chris Hoole of Appleyard Lees provides comprehensive and up to date legal information covering:
In 2012, the decision of the Court of Justice in UsedSoft v Oracle opened the door to a market for second-hand software in the EEA. Specifically, it concerned the ‘sale’ of perpetual licences for a one-off fee and the interpretation of Article 4(2) of Directive 2009/24/EC (the Software Directive) as it related to onward sales.
Article 4(2) of the Software Directive states:
‘The first sale in the Community of a copy of a program by the rightholder or with his consent shall exhaust the distribution right within the Community of that copy, with the exception of the right to control further rental of the program or a copy thereof.’
In UsedSoft, the Court of Justice found that the rights in a computer program, subject to a perpetual licence and a lump sum payment, were exhausted on the ‘sale’ of a copy whether in physical or online form, provided the first purchaser relinquishes their copy (second hand software). The one-off licence can then be sold freely on the second-hand market provided certain additional conditions are met.
On the facts of the UsedSoft case, Oracle
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