Preliminary question to the ECJ: Is the breach of a software licence agreement a copyright infringement?

Brad SpitzFollowing the Paris Court of Appeal judgment of 10 May 2016 (No 14/25055), the French courts have tended to consider that a licensee who breaches the terms of a software licence agreement does not commit copyright infringement, and that general contractual liability applies instead. In the aforementioned case, the Court dismissed the licensor’s (Oracle) claims that its licensee had committed copyright infringement. The case law is nevertheless not entirely clear-cut: in a judgment of 1 September 2015, the Court of Appeal of Versailles ruled that the use of a computer program in breach of a licence agreement does constitute copyright infringement (No 13/08074, SAS Technologies v SAS Infor Global Solutions). The Court of Appeal of Paris has now had its own doubts and has recently referred the following preliminary question to the ECJ (IT Development v Free Mobile, 16 October 2018, No 17/02679 – before the ECJ, Case C-666/18): ‘Does a software…

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