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

The material provisions of the Software Directive were implemented in the CDPA (as amended). Sections 1, 2 and 3 provide that copyright is a property right which subsists in original literary works, including a computer program.

Acts restricted by copyright in a work include the right to copy (including storage in any medium by electronic means), issue copies and adapt the work:

Section 16

“(1)

The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom—

(a)

to copy the work (see section 17);

(b)

to issue copies of the work to the public (see section 18);

…

and those acts are referred to in this Part as the “acts restricted by the copyright”.

(2)

Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.

(3)

References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it—

(a)

in relation to the work as a whole or any substantial part of it, and

(b)

either directly or indirectly;

and it is immaterial whether any intervening acts themselves infringe copyright.”

Section 17

“(1)

The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.

(2)

Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means.

…

(6)

Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work.”

Acts incidental to, and necessary for, the purposes of lawful use by a lawful user do not constitute an infringement of copyright:

Section 50A

“(1)

It is not an infringement of copyright for a lawful user of a copy of a computer program to make any back up copy of it which it is necessary for him to have for the purposes of his lawful use.

(2)

For the purposes of this section and sections 50B, 50BA and 50C a person is a lawful user of a computer program if (whether under a licence to do any acts restricted by the copyright in the program or otherwise), he has a right to use the program.

(3)

Where an act is permitted under this section, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296A, void).”

Decompilation of a computer program is permitted for interoperability purposes subject to express limitations:

Section 50B

“(1)

It is not an infringement of copyright for a lawful user of a copy of a computer program expressed in a low level language—

(a)

to convert it into a version expressed in a higher level language, or

(b)

incidentally in the course of so converting the program, to copy it, (that is, to “decompile” it), provided that the conditions in subsection (2) are met.

(2)

The conditions are that—

(a)

it is necessary to decompile the program to obtain the information necessary to create an independent program which can be operated with the program decompiled or with another program (“the permitted objective”); and

(b)

the information so obtained is not used for any purpose other than the permitted objective.

(3)

In particular, the conditions in subsection (2) are not met if the lawful user—

(a)

has readily available to him the information necessary to achieve the permitted objective;

(b)

does not confine the decompiling to such acts as are necessary to achieve the permitted objective;

(c)

supplies the information obtained by the decompiling to any person to whom it is not necessary to supply it in order to achieve the permitted objective; or

(d)

uses the information to create a program which is substantially similar in its expression to the program decompiled or to do any act restricted by copyright.

(4)

Where an act is permitted under this section, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296A, void).”

The rights to observe, study or test the functioning of a computer program are permitted as provided in Article 5(3) of the Software Directive:

Section 50BA

“(1)

It is not an infringement of copyright for a lawful user of a copy of a computer program to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do.

(2)

Where an act is permitted under this section, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296A, void). ”

Section 50C

“(1)

It is not an infringement of copyright for a lawful user of a copy of a computer program to copy or adapt it, provided that the copying or adapting—

(a)

is necessary for his lawful use; and

(b)

is not prohibited under any term or condition of an agreement regulating the circumstances in which his use is lawful.

(2)

It may, in particular, be necessary for the lawful use of a computer program to copy it or adapt it for the purpose of correcting errors in it.

(3)

This section does not apply to any copying or adapting permitted under section 50A, 50B or 50BA.”

Where a person has the use of a computer program under an agreement, any term or condition in the agreement shall be void in so far as it purports to prohibit or restrict the rights set out in sections 50A, section 50B, or section 50BA:

Section 296A

“(1)

Where a person has the use of a computer program under an agreement, any term or condition in the agreement shall be void in so far as it purports to prohibit or restrict—

(a)

the making of any back up copy of the program which it is necessary for him to have for the purposes of the agreed use;

(b)

where the conditions in section 50B(2) are met, the decompiling of the program; or (c) the observing, studying or testing of the functioning of the program in accordance with section 50BA.

(2)

In this section, decompile, in relation to a computer program, has the same meaning as in section 50B.”