[Editor's note] Like most countries and regions in the world, The rulings of the Court of Justice of the European Union have important guiding significance and predictive value for understanding the legal norms of the European Union. Esabaril (ELZABURU) At the beginning of each year, typical cases of the Court of Justice of the European Union in the previous year are summarized and published, And a brief review of each case, In order to help customers and partners to understand the EU intellectual property norms. Given the importance of Chinese customers and partners, We try to publish the Chinese version of typical cases on a weekly basis, It is convenient for Chinese partners to learn the latest information in a timely manner. 　　

[background] 　　

IT Development SAS Company and Free Mobile SAS The company signed "ClickOnSite" Program license and maintenance agreement. "ClickOnSite" Is a centralized project management program, Free Mobile SAS (A French mobile phone operator that offers mobile phone plans) Use the program, The ability to organize and monitor the progress of its team and outsourced technical service providers in deploying its wireless telephone antenna project in real time. 　　

IT Development SAS File a complaint with the Paris District Court Free Mobile SAS, Allege that the defendant used "ClickOnSite" Create a new form without permission during the program, Modify the procedures involved without permission, Infringement of the plaintiff's procedural copyright, Be liable for tort damages. In addition, IT Development SAS Holding that the defendant's material modification of the procedure without permission also constitutes a breach of contract, Because the parties license agreement No 6 article "Permissible scope" stipulation: Licensee is expressly prohibited from passing, directly or indirectly, decompilation and/Or perform reverse engineering to copy the package, Or make any modifications to the program, directly or indirectly, correction, adapt, Secondary creation, Or add content, etc. 　　

The court of first instance rejected the plaintiff's claim, It points out that there are two separate standards of liability in this dispute: One is the tort liability caused by obstructing the exercise of rights by the copyright owner of the program; The other is the liability for breach of contract arising from the violation of copyright contract terms. In this case, Free Mobile SAS What was alleged was apparently liability for breach of contract for failing to perform obligations under the contract, Rather than procedural copyright infringement liability. 　　

The case was later appealed to the Court of Appeal in Paris. The Court of Appeal asked the European Court of Justice whether the breach of contract terms by a licensee of a procedural license contract should be regarded as copyright infringement or breach of contract, Make a preliminary determination. 　　

[conclusion] 　　

The European Court of Justice first noted, The question posed by the court of Admissibility is actually, In accordance with the "Directive of the European Parliament and the European Commission on enforcement of intellectual property rights (The first 2004/48/EC No) " and "Directive of the European Parliament and of the Council on the legal protection of computer programs (The first 2009/24/EC No) " Relevant provisions of, What is the liability regime regardless of the applicable law of the relevant member State, Violation of the provisions of the computer program license agreement relating to the intellectual property rights of the program's copyright owner, Admissible composition "European Union regulation 2004/48/EC Number instruction" prescribed "Intellectual property infringement" , And the owner may therefore request that the directive be applied to protect his interests? 　　

The European Court of Justice stated that, "European Union regulation 2004/48/EC Number instruction" The first 1 The beginning of the article is clear, States that member states should treat computer programs as literary works, Applicable copyright protection regulations. In accordance with the directive 4 article, The exclusive rights that a Member State shall grant to the owner of a computer program shall include, Subject to special exceptions, Translate computer programs yourself or permit others to do so, adapt, Tidy up and make other changes. Therefore, It is forbidden to modify the source code of computer programs, Belong to "European Union regulation 2004/48/EC Number instruction" Defined categories of computer program copyright. 　　

The European Court of Justice also stated, "European Union regulation 2009/24/EC Number instruction" Protect the copyright of computer program owners, Does not depend on whether the alleged infringement violates the terms of the license agreement. 　　

Based on the above analysis, The European Court of Justice held that, "European Union regulation 2004/48/EC Number instruction" The first 10 Sum control 13 The paragraph indicates that the legislative purpose of the directive is, Unify the legislative norms of all member states, ensure (European Union) The internal market is strict on intellectual property rights, Equivalent and homogeneous protection, And the directive should be applied as broadly as possible, To cover all types of intellectual property under relevant EU law and member State law. Therefore, For violating the computer program license agreement, Infringement of intellectual property rights related to the procedure, Ought to apply "European Union regulation 2004/48/EC Number instruction" Stipulation of. 　　

Notwithstanding the foregoing, The European Court of Justice stated that, "European Union regulation 2004/48/EC Number instruction" Aim to include "European Union regulation 2009/24/EC Number instruction" Stipulated computer program copyright included, All intellectual property rights holders shall establish methods for protecting their rights, Procedures and remedies, etc. but, "European Union regulation 2004/48/EC Number instruction" There is no provision for the specific means by which the above guarantees of rights will be realized, And the specific liability of compensation should be applied when the fact of infringement is found. 　　

Based on the above considerations, European court of justice ruling, "European Union regulation 2004/48/EC Number instruction" and "European Union regulation 2009/24/EC Number instruction" Stipulation of, Should be understood as, Violation of the provisions of the computer program license agreement relating to the intellectual property rights of the program's copyright owner, Regardless of the liability under the law of the relevant member state, Homogeneous composition "European Union regulation 2004/48/EC Number instruction" prohibited "Intellectual property infringement" , Therefore, The computer program owner has the right to apply the directive to protect his interests. 　　

[comment] 　　

Some decisions of the European Court of Justice, Although there is no broad legal basis for making fashion, But fortunately, The decision affirms the legal consensus that had been reached in the legal community over the controversy. Sign an intellectual property license agreement, Does not exempt the licensee from the risk of being sued for infringement. Breach of contract terms and beyond the scope of the contract to infringe on the rights reserved by the copyright owner, It's a completely different concept. Infringement beyond the scope of the license agreement, May be deemed as copyright infringement.

The measures and remedies provided by the national laws of the Member States that the copyright owner may adopt as determined by the European Court, Must take precedence over the definition of the type of legal liability the infringer may be liable for, That's very true. Under any circumstances, These measures and remedies should be consistent "European Union regulation 2004/48/EC Number instruction" Stipulated unified protection standards. 　　

compile: Liu Dan, Esabarry Legal Counsel　　source: Esabaril (ELZABURU) Intellectual property rights