ARTICLE · 16 NOVEMBER 2016

EU Court Answers: When Can You Re-sell Software?

Mason Hayes & Curran LLP

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Mason Hayes & Curran LLP

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The initial acquirer of a copy of software, in some circumstances, may resell that copy and his licence to a new acquirer.

IrelandIntellectual Property

Philip Nolan

Jeanne Kelly

Lisa Taylor

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The initial acquirer of a copy of software, in some circumstances, may resell that copy and his licence to a new acquirer. We examine a recent EU court decision on whether the right to resell extends to the resale of backup copies of software programs.

The law

The principle of exhaustion of rights is long established in IP law. The exhaustion principle is reflected in Article 4(2) of the Software Directive, which provides that:

"The first sale in the Community of a copy of a program by the rightholder or with his consent shall exhaust the distribution right within the Community of that copy, with the exception of the right to control further rental of the program or a copy thereof."

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EU Court Answers: When Can You Re-sell Software?

The law

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