Many SAP clients have been disturbed by its insistence on charging for “oblique utilization”. Final 12 months’s case towards Diageo supported SAP’s place that entry by customers that had been connecting to SAP techniques not directly was chargeable, regardless that SAP had no consumer metric for such use.
Nonetheless, there’s a primary query that’s at the moment being examined in Germany: is SAP permitted, by European Union (EU) regulation, to cost for oblique utilization when it is a essential a part of this system utilization?
The potential of invalidity derives from interpretation of key provisions within the EU’s 2009 Software program Directive, which recognised the essential worth of software program but additionally sought to eradicate what it known as “destructive results on the functioning of the inner market as regards pc packages”.
The basic query of whether or not the imposition of prices for oblique utilization was invalid underneath EU regulation was surprisingly neither included as a part of the defence, nor examined by the choose, within the Diageo excessive court docket case.
Nonetheless, German teachers have now been exploring this level within the context of SAP’s enterprise practices. Representations had been additionally made earlier this month by the German Affiliation of IT Professionals to the nation’s competitors authority (the Bundeskartellamt), though particulars of those representations haven’t been launched.
The start line is that any rights proprietor, reminiscent of a software program provider, will personal copyright in its packages and may select how, underneath what phrases and at what costs it could license these to its clients.
Nonetheless, copyright regulation contains sure “permitted acts” that don’t require permission from the proprietor and for which no prices might be levied. Honest use is one instance. The UK’s copyright laws has greater than 60 of those exceptions, established over 200 years however extra just lately typically derived from EU directives.
The EU has at all times sought to help the pursuits of the rights house owners, who needs to be inspired to take a position and innovate and so count on remuneration. However, equally, this should be balanced towards the necessities of enterprise and customers.
Towards this backdrop, the EU issued a directive in April 2009 particularly addressing software program.
Such directives are generally fairly common in nature and do result in the courts having to interpret the intentions behind a directive, as mirrored within the background wording, in addition to the precise articles.
The 2009 directive particularly recognised the crucial significance of regular utilization and interoperability and that these shouldn’t be inhibited.
The target was acknowledged to make it attainable that every one purposes, from completely different suppliers, might work collectively with out authorized limitations imposed by one provider.
So, towards this backdrop, there are two invariable necessities laid down by the EU:
Use (within the type of operating, loading, show, and so forth) doesn’t require a licence from the software program proprietor the place it’s “essential” for its use by the customer, together with for error correction.
And (topic to sure circumstances) a licence can also be not required the place the use is “indispensable to acquire the data essential to realize interoperability with different packages”. Nonetheless, this second provision can’t be utilized if it “unreasonably prejudices the rightholder’s professional pursuits” or conflicts with “a standard exploitation” of the software program.
So, might this cowl oblique utilization, as within the Diageo case? There, gross sales brokers and patrons logged right into a Salesforce program to entry order particulars, costs and supply occasions – info that was in the end saved inside Diageo’s SAP program. SAP, basically, maintained that such people had been accessing the SAP program immediately or not directly, this being “by way of the web or via a hand-held or third-party system or system”.
The choose, reasonably obscurely, mentioned that entry included “buying visibility” of the SAP packages and concluded that any such entry or use required all individuals to be licensed customers.
Towards this, the authorized arguments may very well be that, right now, interoperability means a lot greater than the insertion of an API. All ERP (enterprise useful resource planning) techniques are typically interlinked, and one individual accessing one program for very restricted functions might properly essentially set off adjustments to different, extra distant, packages within the IT infrastructure.
Briefly, everybody who touches any enterprise system is likely to be sending knowledge to and from a raft of different packages and databases. That’s how info know-how works right now.
In an excessive instance, a client logging on from house to verify supply prices for a product or its availability might be triggering a number of techniques inside the provider. Such an individual is an oblique consumer and would seemingly should be paid for underneath many suppliers’ licensing schemes. The licensing prices would, nevertheless, destroy many companies if the software program suppliers took their oblique entry licensing to its logical conclusion.
If, then, the overriding intention of the EU was to facilitate reasonably than inhibit enterprise effectivity, then all such oblique utilization should be sanitised and require no licence.
If that had been accepted – and positively the European court docket has been identified to make such leaps in its examination of software program utilization and enterprise – the place does this depart SAP?
The conclusion could be that SAP’s licence phrases and insurance policies requiring a licence for such utilization could be void. No licence prices for this may very well be invoiced.
This might then open up claims by clients towards SAP for restoration of all sums paid for such utilization up to now. There would even be attainable claims for penalties towards SAP for abusing its monopoly place by requiring cost for invalid licensing.
We nonetheless have no idea how the German investigations will play out and the way and whether or not these sorts of argument will likely be litigated and whether or not they would succeed or fail. However definitely, any enterprise on the receiving finish of claims for under-licensing on the idea of oblique utilization ought to critically study whether or not the claims – from any software program provider – are certainly lawful.
Robin Fry is a authorized director of Cerno Skilled Providers, which specialises in audit defence and strategic licence optimisation