Draagt het Weens Koopverdrag bij aan het antwoord op de vraag of licentieverlening op een softwareprogramma het auteursrecht ‘uitput’?

The founder of a Dutch company in formation concluded a Licensing Agreement with a Canadian company whereby the latter licensed the downloading of software for use on a single website. Although the founder ‘may not transfer’ the software that was just ‘licensed, not sold’, he nevertheless transferred it to his company and to its customers anyway. The Dutch court seized by the licensor denied the licensor’s claim for damages on account of non-performance on the grounds that the EU Software Directive provides that ‘the first sale of a copy of a program by the rightholder shall exhaust the distribution right within the Community’ (Art. 4(2)) and that this transfer constituted a ‘sale’ in the wide sense of this legal term as was taken in the UsedSoft judgment of the ECJ.

The Dutch court asserted that its decision also rested on the Convention on the International Sale of Goods which it deemed to be applicable. It turns out, however, that it did not apply this treaty at all. The Dutch court neither applied the legal consequences that this treaty attaches to an international sale of goods in the sense of its Article 1 nor the concept of a ‘sale’ which is used therein. Its reference to this treaty was therefore gratuitous.