Jurisdiction(s):
United Kingdom

CJEU in Top System v Belgium: licensees may decompile to correct errors despite contractual bans where necessary; ‘error’ and ‘necessary’ clarified; implications for UK CDPA 1988 s 50C post-Brexit

Published on: 12 October 2021

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Top System SA v Belgium Case C-13/20 What are the practical implications of this case?

Practitioners already recognise that software licensing terms cannot bar decompilation where it is indispensable to obtain information needed to secure interoperability between computer programmes, provided the conditions in the relevant Software Directive are satisfied. Beyond this (limited) carve‑out, it was commonly thought that decompilation could be prohibited by a software licence (see the Opinion of AG Szpunar of 10 March 2021, point 82). Indeed, the Copyright, Designs & Patents Act 1988 (CDPA 1988) states that copyright is not infringed when a programme is copied or altered, so long as those steps are necessary for the licensee’s lawful use and are not excluded by contract (CDPA 1988, s 50C). In practice, software licences often expressly ban decompilation. Yet the Court of Justice held that contractual terms outlawing decompilation for the purpose of correcting errors are ineffective where decompilation is necessary for the licensee to carry out that correction. In reaching that view, the Court of Justice construed key legal notions such as ‘error correction’ and ‘necessary’. The court also set limits on the extent of the right to decompile for error correction. The decision appears at...

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