Analysis: “C-13/20: Decompilation for coding error correction allowed!” by Sabine Jacques
Last week, on 6 October 2021, the Court of Justice handed down its decision in Top System (C-13/20) on the extent to which the lawful acquirer of a computer program is entitled to decompile all or parts of it to correct errors affecting the operation of said program. The referral questions were brought by a Belgian court (the Court of Appeal of Brussels) in relation to the fact that a Belgian public body had decompiled parts of a computer program to correct errors affecting its functioning without the authorisation of its original author, Top System. This case is of interest as it provides clarification on how a lawful acquirer of a computer program may engage with it without infringing copyright.
Decompiling for error correction
Top System, a computer program developer, has been developing applications for SELOR, a Belgian public body. Given the lack of agreement between the parties, SELOR went ahead and decompiled certain malfunctioning software provided by Top System, including the disabling of a function that affected the proper functioning of the program. Top System sued SELOR for copyright infringement whilst SELOR argued that it was entitled to decompile for error correction. The Court of Appeal of Brussels referred two questions to the Court of Justice, namely (i) whether the lawful acquirer of a program is entitled to decompile it especially where decomplication is necessary to correct errors affecting the operation of the program − even if this means disabling a function of the program, and (ii) if so, whether the conditions for decompilation in Article 6 of the Software Directive must be met.
As noted by AG Szpunar in his Opinion on the case, although decompilation is not listed as one of the rightholder’s exclusive rights in article 4 of the Software Directive, it is hard to carry out this type of act without entering the sphere of protection of rightholders. This is due to the fact that decompilation involves an at least temporary reproduction of the program code and a translation exercise. Therefore, unless falling within the scope of exceptions, the act of decompilation should result in a copyright infringement if done without the rightholder’s prior consent.
Entering the realm of exceptions, Article 5 of the Software Directive provides that carrying one of the acts covered by an exclusive right for the purpose of error correction is allowed even without prior authorisation if there are no specific contractual obligations stating otherwise. In addition, Article 6 provides that decompilation for interoperability is also allowed if it meets a series of requirements.
Article 6 is not lex specialis
According to the appellants’ interpretation of the Software Directive, the exception of decompilation is only allowed in relation to interoperability issues but not for error corrections. Following AG Szpunar’s Opinion, the Court of Justice held that Articles 5 and 6 have different purposes. Therefore, if decompilation occurs for the purpose of error correction, there is no need to satisfy the requirements of Article 6, which relate to activities of decompilation for the purpose of interoperability.
Specific contractual provisions
Article 5 enables error correction in the absence of specific contractual provision stating otherwise. This was not an issue in this case, as there was not a contractual clause preventing SELOR to correct coding errors. The Court of Justice found that the reading of Article 5 in conjunction with recital 18 of the Directive means that although the rightholder cannot prevent the acquirer to carry out the acts falling within the scope of his exclusive rights for the purpose of error correction, such a rightholder is entitled to organise these activities through contractual provisions such as a commitment to corrective maintenance. In sum, decompilation is allowed if it is for the purpose of error correction affecting the operation of the program.
Coding errors are common
Behind the machine lies a human creator (at least for now). To operate, these machines require perfection which, at times, human beings cannot deliver. With the growing reliance on coding comes a greater risk that coding errors interfere with the normal functioning of a program. If errors are common, they can either be insignificant or have important repercussions on the functioning of a program.
Consequently, this decision will be welcomed by some as it clarifies the acts which the lawful acquirer of a program is entitled to carry to rectify these coding bugs without infringing copyright or being in violation of its contractual obligations. In this regard, it must be noted that although the Software Directive concerned is no longer in force, these provisions remain unchanged in the current Software Directive, and that therefore this interpretation remains of interest.
Sabine Jacques is Associate Professor in IP/IT/Media Law at the University of East Anglia.