On January 26, 2017 (case reference: I ZR 22/16), the BGH ruled on the interpretation of rights of use granted in a software license agreement in the context of an appeal against denial of leave to appeal.
The use of the software by an employee who is not registered in the employee administration does not constitute use by the licensee that exceeds the scope of the license.
Determining the rights of use based on the purpose of the contract
The lawsuit was brought by a software manufacturer against a large company.
The company was granted certain rights of use as part of a software transfer agreement on the occasion of the purchase of the software.
In the absence of expressly regulated agreements, the scope of the rights of use was to be determined on the basis of the purpose of the contract, Section 31 para.
1 and para.
5 UrhG:
If the types of use are not expressly designated individually when a right of use is granted, the types of use to which it extends shall be determined by the purpose of the contract on which it is based by both parties.
The same applies to the question of whether a right of use is granted, whether it is a simple or exclusive right of use, how far the right of use and prohibition right extend and what restrictions the right of use is subject to.
Use of the software by unregistered employees
According to the BGH, the Court of Appeal assumed without error of law that the use of the software by an employee not registered in the employee administration system did not constitute use in excess of the license.
There was neither an infringement of the reproduction right (Section 69c No. 1 UrhG) nor an infringement of the editing right (Section 69c No.2
UrhG).
No exceeding of the intended use
For the determination of a possible claim for damages, it is therefore not at all important whether the entrepreneur violated the intended use of the software (Section 69d (1) UrhG).
Whether an act of use is unlawful depends – to emphasize once again in conclusion – primarily on the granting of the rights of use required for the use of the software as part of the software license agreement.
The decision of the BGH shows once again how important clear regulations are in every respect.
If there are no clear provisions, the purpose of the contract must be determined by interpretation.