HT-2021-000363 - [2025] EWHC 532 (TCC)

Fecha: 10-Mar-2025

Conclusions on ICA

Conclusions on ICA

271.

Drawing together the strands of the above analysis of the applicable legal principles against the terms and conditions of the ICA, my conclusions on contractual construction are as follows:

The ICA provided a licence of limited scope, permitting Winsopia to use the licensed software for the purposes of Winsopia’s business, using the Designated Machine, for the execution and running of the defined ICA Programs.

ii)

The definition of ICA Programs is broad, comprising machine readable instructions and data as well as components. The permission granted and restrictions imposed in respect of the use of the ICA Programs applied to the whole of each identified ICA Program and to any component part of such program.

iii)

Winsopia’s use of test applications or third-party customer applications would be subject to the restrictions in the ICA if they comprised or contained an ICA Program (or component thereof).

iv)

Clause 4 of the ICA imposed restrictions on Winsopia’s use of the licensed software; in particular, Winsopia was prohibited from reverse engineering ICA Programs, transferring ICA Programs out of its Enterprise, or copying and/or transferring IBM source code to third parties.

Winsopia was not prohibited from sharing or distributing its customer applications and modules with third parties, subject to the terms of material Licensed Program Specifications and/or the terms of the ICA.

vi)

The use of debugging tools, whether supplied by IBM or other commercially available tools, remained subject to the terms of the ICA.

vii)

Winsopia was entitled to exercise the rights of a licensee of computer programs conferred by Articles 5(1), 5(3) and/or 6 of the Software Directive and the CDPA in accordance with the principles summarised above.

viii)

The terms and conditions of the ICA must be read and construed as subject to the Article 5(3) and Article 6 rights under the Software Directive.

ix)

Article 5(1) contains a further exception to the restricted rights, namely, error correction, but that is subject to any terms or conditions in the ICA prohibiting such use.

The limitations and exceptions to the copyright protection should be interpreted restrictively having regard to the right of the copyright owner to exploit the work and the legitimate interests of the author.

272.

With those principles in mind, I now turn to consider the alleged technical breaches. It should be emphasised that, in each case, it is fact-specific as to whether the activity in question constituted legitimate observation, study and testing, or decompilation for the purpose of interoperability; or amounted to a breach of the ICA.