In a decision dated October 5, 2022, the French Supreme Court overturned the decision of the Court of Appeal, which had held that the copyright holder could only act on a contractual basis, insofar as he was claiming infringement of the conditions of use of his software distributed under a free license, and not for infringement by virtue of the principle of non-accumulation of liability. However, the Cour de cassation notes that the CJEU considers that the 2004 Directive on the enforcement of intellectual property rights and the 2009 Directive on the protection of computer programs “must be interpreted as meaning that the rightholder must be able to benefit from the guarantees provided for therein irrespective of the liability regime applicable under national law” (CJEU, December 18, 2019, aff. C-666/18 N° Lexbase : A4336Z84). The owner of copyright in software is therefore entitled to bring an action for infringement even when the infringement is the result of a breach of contract.
Violation of a software license agreement is considered an infringement by the French Supreme Court (Cour de cassation)
