Exhaustion of copyright

A computer program represents the result of the creative activity of its author and as such is protected by copyright and trademark law. In Czech Republic, this is Act No. 121/2000 Coll., On copyright. At Community level, this is Directive 2009/24/EC from 23 4. 2009, on the legal protection of computer programs. The author allows the use of the computer program by a license agreement, on the basis of which the author gives to his customers the right to use a specific software copy.

European doctrine implements the principle of so-called exhaustion of the author's right to control further distribution after first sale (see Article 4 (2) of Directive 2009/24 / EC), which regulates the conditions under which the author no longer has the right to control the resale of a software copy. This is a compromise between the economic interests of the software author and the licensee's right to dispose the license freely.

This issue came to the fore with technological development, which freed software distribution from dependence on physical media. While at the time the physical copy of the software copy, the doctrine of exhausting the author's right to distribute a software copy was not a major problem and was generally accepted, with the development of distribution by downloading installation media from websites (most often the software manufacturer), disputes began to intensify. The license conditions often contained (and still often contain) conditions precluding the possibility of further transfer of the license.

Breaking the institute of exhaustion

These arrangements were considered by the market to be a breach of the institution of exhaustion of the author's right, as a result of which they were challenged. Judgment of the Court of Justice of the EU from 3. 7. 2012, in case C-128/11 (UsedSoft GmbH/Oracle International Corp.), confirmed the application of the doctrine of exhaustion of the author's right to control further distribution of the software copy to copies downloaded from the Internet.

The general conditions for the application of the principle of exhaustion of the author's right to extend and the requirements for further transfer of the license where stated as follows:
  • Licenses were purchased with the consent of the copyright holder and were paid in full.
  • Licenses have been marketed in the EU, EEC or Switzerland.
  • The original holder will ensure that the licenses are uninstalled and prevent their use (in the future).
  • Licenses are not limited in time (perpetual).
  • Licenses are not subject to any third party rights.

The above-mentioned decision was subsequently followed by other case law of the ECJ dealing with partial issues related to the trade in licenses, such as the possibility of making and selling back-up copies, etc.

German legal and case - law practice has dealt with other related issues in connection with the transfer of a licenses, which have arisen in the practical application of the principle of exhaustion, such as the possibility of transfer and distribution of so - called volume licenses (Judgment of the German Federal Court of. 12. 2014, case I ZR 8/13), the possibility of transferring so - called OEM licenses (Decision of the German Federal Court of Justice of 6. 7. 2000, Case I ZR 244/97).

The case law has concluded that, by fulfilling all the conditions mentioned above, the new licensee acquires the use rights in the same extent as the original licensee, and therefore the new licensee becomes a full-fledged license owner.


6. 9. 2021

Downgrade rights software


12. 3. 2021

The most common mistakes in public procurement for the purchase of software licenses

Contact Us