“UsedSoft II”

• 1. If the copyright holder has consented to the downloading of the copy of a computer program from the Internet to a data carrier, the second or any further acquirer of a licence to use this computer program is, pursuant to Sec. 69(d)(1) of the Copyright Act, entitled to reproduce the program if the right to distribute the program copy has been exhausted and the resale of the licence to the purchaser is accompanied by the resale of the program copy downloaded from the copyright holder’s website.

  • a) Exhaustion of the right of distribution requires

    • the copyright holder to have granted his consent in return for payment of a fee that permits him to achieve a remuneration corresponding to the commercial value of the copy of his work;

    • the copyright holder to have granted the first purchaser a right to use the copy without time limit;

    • improvements and updates included in the computer program downloaded by the subsequent purchaser as compared with the computer program downloaded by the first purchaser to be covered by a maintenance contract concluded between the copyright holder and the first purchaser;

    • the first purchaser to have made his copy unusable.

  • b) The resale of the program copy downloaded from the copyright holder’s website does not require the subsequent acquirer to receive a data carrier with the exhausted copy of the computer program; on the contrary, it is sufficient if the subsequent purchaser downloads a copy of the computer program from the copyright holder’s website to his own computer.

• 2. The party claiming that the reproduction of a computer program pursuant to Sec. 69(d)(1) of the Copyright Act does not require the rightholder’s consent bears the burden of presentation and proof that the preconditions of this provision have been satisfied.

• 3. The right granted to the subsequent purchaser of the exhausted copy of a computer program by Sec. 69(d)(1) of the Copyright Act to use it in accordance with its intended purpose cannot be excluded by contractual provisions that reserve this right to the first acquirer.

• 4. What is part of the use of a computer program in accordance with its intended purpose pursuant to Sec. 69(d)(1) of the Copyright Act is determined by the licence contract concluded between the copyright holder and the first acquirer.