The Tribunal rejected both positions „all or nothing“ and held that the courts should judge each offence individually in order to determine whether the allegedly violated clauses are restrictions on the scope of the licence resulting in infringement claims or contractual agreements that must be resolved in violation of contractual remedies. In enforcing Illinois law, the court said the terms of the courts will be considered independent alliances if the parties` intent is unclear. Is non-compliance with a software licensing agreement a violation of intellectual property or can it be subject to another national legal system? Following an application for a preliminary decision by the Court of Appeal in Paris (France), the European Court of Justice (ECJ) clarified: in a judgment of 18 December 20191, that the violation of a software licensing clause relating to intellectual property rights is treated as a „violation of intellectual property rights“ within the meaning of Directive 2004/48/CE2 (the „enforcement directive“), which implies that the copyright holder (economic rights) of this software must benefit from the guarantees provided by the enforcement directive (including the measure of infringement). With regard to the specific case, the Advocate General proposed that the disagreement on the legal basis be considered contractual, since the alleged infringement – the modification of the source code of the programme in relation to the terms of the agreement – is contractual in nature. Where the license agreement is limited to its scope and the taker acts outside the scope, the licensee can sue for infringement. In order to impose itself, the licensee must demonstrate that the terms of the licence are restrictions on the scope of the licence and non-independent contractual agreements and that the holder`s actions are beyond the scope of the licence. In some cases, the courts have found that a licensing agreement has created both contractual agreements and terms, contractual agreements and restrictions on the scope of the licence. In such cases, the courts have held that there are both offences and grounds for offence. This is where the difficulty can arise: national regulations may provide for different areas of protection. In the Netherlands, Germany and the United Kingdom, it would appear that a breach of a software licensing agreement could constitute either a violation of intellectual property or an infringement.
Other countries, such as Belgium and France, prohibit reliance on both options and seek to establish an order of prevalence. These converging rules led the Paris Court of Appeal to submit a question of breach of a licence agreement to the European Court of Justice (ECJ).