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News article28 October 2021European Innovation Council and SMEs Executive Agency

Breaking down software and borrowing clothing patterns

News

 

Can a software licensee decompile the software to solve bugs?

The European Court of Justice (ECJ) handed down a decision this month on the rights of software licensees to decompile the software in order to solve bugs or functionality problems. Decompiling a software is the act of “translating” back a software to its source code: usually when a software is sold or licenced, it is not passed in its source code format, but rather an “object code”, blocks determining the functionalities of the software but which do not allow the customer to access the source code. In principle, only the owner of the software (who therefore owns the copyright over said source code) can reproduce or alter the source code, not the customer who would be infringing on the owner’s copyright if it were to do so. Bugs however are solved by altering the source code, and this can therefore be a problem for customers who have purchased a licence for a software and encounter problems with its functionalities.

This is exactly what happened in the case involving a Belgian public agency, Selor, and Top System, an IT solutions provider. Selor and Top System had entered into a licencing agreement allowing Selor to use Top System’s applications. As they encountered technical difficulties in doing so, and after failing to solve the problem with their provider, Selor decided to decompile the software themselves in order to fix the issues they were encountering with it.

On finding this out, Top System brought an action against Selor, claiming it had breached its exclusive rights in the software and asking for damages for the decompilation and copying of the source code of the software. The case made its way to the top, and the ECJ gave its decision this month.

The ECJ stated that decompilation of a software is allowed, when necessary for the corrections of errors which affect the functioning of the program. Nevertheless, the act of decompiling a software to its source, when carried out by a lawful purchaser of the computer program, is limited to what is strictly necessary to solve these bugs, and may not be extended any further.

 

Do not try to register traditional clothing patterns as your own design

The Spanish Supreme Tribunal has declared void a registered design which included the well-known (in Spain at least) pattern of the “cachirulo aragonés”, a specific type of patterned scarf traditional to the Aragon region in northern Spain.  

The registered design consisted in applying this pattern to other types of clothing, arguing that the application of this pattern to these different clothes which were not scarves was new and therefore protectable. This argument was rejected: while the threshold of novelty of designs is relatively low, the question is whether it creates an impression of novelty to the consumer. Here, it was held that applying a well-known pattern to different clothes could not be considered to meet this threshold: the design in question was not sufficiently characteristic so as to generate an impression of novelty to the average consumer.

This is a good reminder to creators that while it is sometimes, or even often, possible to reuse well-known patterns (whenever these are not protected obviously), protecting them and thereby obtaining a monopoly over their use is a different kettle of fish.

 

Details

Publication date
28 October 2021
Author
European Innovation Council and SMEs Executive Agency