Zoe O’Sullivan QC summarises the Court of Appeal’s ruling in Computer Associates UK Ltd v The Software Incubator Ltd
In an important decision, the Court of Appeal has held in Computer Associates UK Ltd v The Software Incubator Ltd  EWCA Civ 518 (reversing the judgment of HHJ Waksman QC at first instance) that the supply of software in the form of a download is not a ‘sale of goods’ for the purposes of the Commercial Agents (Council Directive) Regulations 1993.
As the Court found, English, Commonwealth and European authority has consistently held that only tangible property can be ‘goods’. The caselaw has accordingly maintained a distinction between the situation where software is supplied in tangible form on a disk (which is capable of being a sale of goods) and where it is delivered purely in electronic form (which is not a sale of ‘goods’).
In St Albans DC v International Computers Ltd  4 All ER 481, the Court of Appeal expressed the view (obiter) that a software programme is not ‘goods’ for the purpose of the Sale of Goods Act 1979, but distinguished the situation where the programme was supplied on disk. This distinction was followed and applied in the case of an electronic database in Your Response Ltd v Datateam Business Media Ltd  EWCA Civ 281.
In a first instance decision on the Commercial Agents Regulations, Tugendhat J held that ‘software is intellectual property, not a chattel’, and that the Regulations did not apply to the supply of software because there is no sale of ‘goods’: Accentuate v Asigra  All ER (Comm) 738.
The New South Wales Supreme Court has held that software supplied as an internet download is not ‘goods’ for the purposes of the Australian Sale of Goods Act 1923 because ‘goods’ are limited to tangible items: Gammasonics Institute for Medical Research Pty Ltd v Comrad Medical Systems Pty Ltd  NSWSC 267.
The 6th VAT Directive expressly states that ‘goods’ for the purposes of that Directive are limited to tangible property, with the result that the CJEU has held that the supply of electronically downloaded books and software is a supply of services, not a supply of goods: see Levob Verzekringeren BV v OV Bank NV, Case C-41/04  ECR I-9433, Commission v Luxembourg, Case C-502/13 (ECJ) and Commission v France, Case C-479/13 (ECJ).
Gloster LJ (with whom both Henderson LJ and Irwin LJ agreed) repeatedly expressed sympathy for the argument that this distinction between goods supplied on a tangible medium and goods downloaded from the internet is outdated. She noted that the distinction leads to odd and inconsistent results. For example, a commercial agent promoting hard-copy books on behalf of its principal would be protected under the Regulations, but an online bookseller promoting online content would not. Also, if the software was initially downloaded, but a backup copy was then provided on disk, the backup supply would be a supply of ‘goods’ but the initial supply would not: a distinction for which there is no rational basis.
However, Gloster LJ took the view that it was not for the Court to depart from the weight of prevailing authority by giving ‘goods’ a sufficiently wide interpretation to cover software supplied in electronic form. She said that this was an area where reform needed to come from the legislature and not via judicial interpretation. She noted that in Australia and New Zealand, the legislature had done just that by amending their consumer legislation to extend the definition of ‘goods’ to computer software. It was also relevant that the Commercial Agents Regulations are designed for the protection of commercial agents rather than consumers, and thus a narrower interpretation was justified.
What is of particular interest is that, as Gloster LJ noted, the Consumer Rights Act 2015, which implements the Consumer Rights Directive 2011/EU of 25 October 2011, has not gone down the Commonwealth route of extending the definition of ‘goods’ to include software but instead has come up with the new concept of ‘digital content’ (which is defined as ‘data which are produced and supplied in digital form’). The Directive preserves the existing view that software supplied in a tangible medium should be considered to be ‘goods’, but expressly recites (in Recital 19) that contracts for the sale of digital content should not be classified for the purposes of the Directive as sales contracts or service contracts.
Gloster LJ observed that if the Court were to uphold the interpretation of the court at first instance and find that software was ‘goods’, this could lead to uncertain and potentially unjust consequences. In particular, it would involve recognising information as property, which the law has stopped short of doing until now. It might also lead to the creation of proprietary rights which could give the supplier of the software preferential or security rights in the insolvency of the customer, to the disadvantage of the creditors.
It is submitted that the caution of the Court of Appeal is well-founded. There is a superficial attraction in doing away with the outmoded and irrational distinction between software supplied on disk and software supplied by download. However, the better approach is not to reinterpret legislation drafted before the advent of the internet, but to craft new legislation which specifically addresses the realities of the supply of intangible property online. In doing so, it will need to address such issues as the implication of terms as to quality and fitness for purpose.
It seems likely that the approach of the Court of Appeal will be applied in relation to other legislation relating to the sale of goods, and in particular the Sale of Goods Act 1979. If so, unless and until the gap is filled by legislation, there will be no scope for the implication of the statutory implied terms under that Act into software licensing contracts, including the terms as to satisfactory quality and fitness for purpose. In practice, this may have little impact, as software contracts generally replace the statutory implied terms with express warranties as to compliance with specification. It should also be noted that the approach of the Court of Appeal in St Albans DC v ICL was to hold that similar terms as are implied by the Sale of Goods Act 1979 can also be implied at common law.
Zoe O’Sullivan QC is a barrister at One Essex Court. Zoe is registered as a Registered Foreign Lawyer with the Singapore International Commercial Court. She also sits as an arbitrator and is on the arbitration panels of the ICC and the LCIA.