Can the IT license agreement be replaced by a lease agreement?

Wojtek Petlic

The onerousness of the copyright regulation of the license agreement is leading to further attempts by IT companies to break out of these shackles by their legal services.

In particular, there has been a demand to apply the regulation of the lease of a thing (Article 659 § 1 of the Civil Code) directly to an object that is not a thing, i.e. software.

In fact, this required at least partial identification of software with its copy. Aside from the narrow issue of so-called marketing, however, this still seems unacceptable.

Moreover, it required drawing an overly far-reaching conclusion about the possibility of software leases from the mere coincidence of the concept of "lease" in defining the field of exploitation in the form of a lease of a copy and in the named contract of the Civil Code. However, these issues are separate and completely different and cannot be equated in this way. A field of exploitation is a field of exploitation, and a contract is a contract.

It also seems to be going too far to conclude that it would be permissible to conclude software lease agreements due to the sheer significant discrepancies in copyright law doctrine with regard to the possible application of the contract provisions of sections of the Copyright Act to lease and use agreements.

It turns out, moreover, that having constructed, in extensive and based on rich professional literature and extremely interesting case law, the entire model of a software lease agreement, the authors allow, however, to refer to it only in the contractual provisions "in addition to the provisions providing for the granting of a license to the ordering party" or in a salvatory clause.

As a result, it seems that such a narrow, and in fact also very unclear as to the exact scope, admission of the use of a software lease agreement has little practical application. As it seems, therefore, the work done by the authors themselves has led to the exclusion of the use of a software lease agreement (which is a pertinent conclusion!), rather than to the confirmation of such a possibility.

As can be seen from this, IT companies remain basically "condemned" to right-author licenses, since the conclusion of a software lease agreement can also give rise to difficulties.

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