License Agreement Cases

The case returned to the Paris Court of Appeal, which must now determine the liability regime for copyright infringement of the computer program by the licensee. The Court of Appeal will no doubt decide that the offence of the licensee who amended the source code constitutes a copyright infringement and that the specific copyright regime applies. Only this solution will allow the licensee to obtain the guarantees provided by French copyright in accordance with the 2004/48 directive, including specific rules and procedural measures as well as specific rules for calculating harm. Moreover, in such cases, the limitation of measures is very often overlooked. It should be noted that the licensing agreement has certain characteristics: the licence agreement must indicate the nature of the licence, the specific rights granted under the agreement, the methods of using the object in question, the territory and duration for which the rights are granted, the scope, procedures and conditions of payment for the use of the object, as well as other conditions that the parties deem appropriate for inclusion in the agreement. Strategy and conclusionThe main argument in this case – the consideration of a change in the terms of employment – was an interpretation of state law. Both employers and workers must ensure that they understand the existing legislation in this regard and that they structure the agreements accordingly. The Court of Justice has rephrased the following question: “It should be taken into account that the referring court, in its question, essentially asks whether directives 2004/48 and 2009/24 should be interpreted in the sense that the violation of a licensing clause for a computer program relating to the copyright holder`s intellectual property rights falls within the concept of “violation of intellectual property rights”; for the purposes of Directive 2004/48, and that the owner must therefore benefit from the guarantees provided by this directive, regardless of the liability regime in force under national law.” (para. 30). Most retail software licenses reject (as far as local laws permit) any guarantee on the performance of the software and limit liability in case of damage to the purchase price of the software. One known case that confirmed such a disclaimer is Mortenson v. Timberline. It should also be noted that the rights to use intellectual property and their methods of use, which are not specified in the licensing agreement, are deemed not to be granted to the taker.

About Gernot Kellermayr

Leistungssport bis zum Alter von 27; dann 5 Jahre bei Austria PUMA als Key Account Manager angestellt, danach 8 Jahre bei FISCHER als Verkaufs- und Marketingleiter, dann 1 Jahr GF bei Lyoness und seit 1.1.2010 Selbständig (Xendurance und Lyoness)
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