Short answer
Generally yes. A "personal, non-commercial use only" restriction is a scope limitation on the authorisation granted, and EU software law does not prohibit it.
But the consequences depend on three questions that must be kept separate:
- Is the restriction a valid contract term? Governed by national contract law, plus unfair-terms and competition rules.
- Does breach amount to copyright infringement, or only breach of contract? Depends on whether exceeding the scope means performing an Article 4(1) restricted act without authorisation.
- Is the restriction void under the Software Directive? Only where it is contrary to Article 6 or to the exceptions in Article 5(2) and (3).
Question two is the one that matters commercially. Infringement brings injunctions, delivery-up and statutory remedies under the Enforcement Directive. Breach of contract brings damages and termination.
The restricted acts, and why scope matters
Article 4(1) sets out the exclusive rights: permanent or temporary reproduction by any means and in any form, in part or in whole — expressly including where loading, displaying, running, transmission or storage necessitate reproduction; translation, adaptation, arrangement and any other alteration, and reproduction of the results; and any form of distribution to the public, including rental.
The first limb is the key. Running the program is a reproduction. That is why a scope restriction can have copyright consequences: if the licence authorises reproduction only for non-commercial use, then running it commercially is reproduction outside the authorisation.
That is the mechanism by which a licence-scope breach can become infringement rather than mere breach of contract. Whether it does so in a given case depends on whether the term genuinely limits the grant, or merely imposes a collateral obligation — a distinction national courts draw and which drafting can influence.
The lawful acquirer's baseline right
Article 5(1) provides a default that operates where the contract is silent:
"In the absence of specific contractual provisions, the acts referred to in points (a) and (b) of Article 4(1) shall not require authorisation by the rightholder where they are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction." —
Two features are frequently misread.
"In the absence of specific contractual provisions." Unlike Article 5(2) and 5(3), this default yields to contract. Article 8 does not list Article 5(1), so a licence can regulate it.
"In accordance with its intended purpose." The right is to do what is necessary for the use of the program as intended — which is itself shaped by how the program was supplied and licensed.
Recital 13 nonetheless draws a firmer line at the core:
"This means that the acts of loading and running necessary for the use of a copy of a program which has been lawfully acquired, and the act of correction of its errors, may not be prohibited by contract. In the absence of specific contractual provisions, including when a copy of the program has been sold, any other act necessary for the use of the copy of a program may be performed in accordance with its intended purpose by a lawful acquirer of that copy." —
So there is a distinction between defining the scope of the licence at the outset — which a rightholder may do, including by limiting it to non-commercial use — and prohibiting a lawful acquirer from loading and running the copy it has lawfully acquired at all, which recital 13 says contract may not do. A non-commercial restriction operates on the first footing: it conditions what was granted, rather than denying the lawful acquirer the ability to use what it lawfully holds within that grant.
The Court considered the error-correction limb in Top System (C-13/20), addressing the lawful purchaser's ability to decompile in order to correct errors, and the conditions attaching to that.
What a licence cannot take away
Article 8 is the operative nullity provision:
"Any contractual provisions contrary to Article 6 or to the exceptions provided for in Article 5(2) and (3) shall be null and void." —
That protects exactly three things:
- Article 5(2) back-up copies — a person having a right to use may make a back-up copy so far as necessary for that use.
- Article 5(3) observation, study and testing — to determine the ideas and principles underlying any element, while performing acts the user is entitled to perform.
- Article 6 decompilation — where indispensable to obtain information necessary for interoperability of an independently created program, on the stated conditions.
A commercial-use restriction is not contrary to any of these. It limits the grant; it does not purport to remove a mandatory user right. By contrast, a clause saying "no back-ups", "no benchmarking" or "no reverse engineering for interoperability" is void to that extent.
Note the interaction: the Article 5(2) and 5(3) rights belong to "a person having a right to use". Someone operating outside the licence scope may not be such a person at all.
Exhaustion does not create a right to use commercially
UsedSoft (C-128/11) is sometimes cited for the proposition that a purchaser can do as it likes. It does not go that far.
Article 4(2) exhausts the distribution right in a copy first sold in the Community by the rightholder or with consent. Exhaustion is about onward transfer of that copy. It does not exhaust the reproduction right, and it does not convert a scope-limited licence into an unrestricted one.
What UsedSoft does establish is that a second acquirer of a copy whose distribution right has been exhausted becomes a lawful acquirer able to rely on Article 5(1) — and that a non-transferability clause cannot prevent exhaustion once the conditions of a sale are met. Those are transfer propositions, not use-scope propositions.
The national-law layer
Even a valid-in-principle restriction is subject to national and EU rules the Software Directive does not address.
Contract formation and incorporation. Whether the term was validly incorporated — particularly in click-through and shrink-wrap contexts — is a matter of national law, assessed under the law applicable to the contract.
Unfair terms. Consumer contracts are subject to Directive 93/13/EEC. Several Member States also apply standard-terms control to B2B contracts, which can reach disproportionate or surprising restrictions.
Competition law. Licence restrictions can engage Article 101 TFEU, particularly field-of-use and customer restrictions in distribution contexts, and the Technology Transfer Block Exemption framework where applicable.
Interpretation. Ambiguity in the definition of "commercial use" is construed under the governing law, often against the drafter. Terms like "internal business purposes", "production use" and "commercial use" are frequently undefined and litigated.
Remedies. Whether breach sounds in infringement or contract, and what follows, is substantially a national question even though the Enforcement Directive harmonises parts of it.
Free and open-source licences
A licence prohibiting commercial use is not an open-source licence, whatever else it is called — the Open Source Definition and the FSF freedoms both require permission for commercial use.
This matters in practice because such licences are often mistaken for permissive ones. Separately, copyleft licences impose conditions rather than commercial-use bans, and failing those conditions typically terminates the licence — putting the user outside the grant and into the infringement analysis described above.
Note also that the Digital Content Directive excludes from its scope, under Article 3(5)(f), free and open-source software supplied without a price where personal data is processed only to improve that software's security, compatibility or interoperability.
Drafting and compliance guidance
For licensors:
- Define "commercial use" precisely; ambiguity favours the licensee.
- Frame the restriction as a limitation on the scope of the grant if you want breach to engage copyright, and take advice on how that is treated under the governing law.
- Do not include clauses prohibiting back-ups, study and testing, or interoperability decompilation; they are void under Article 8 and undermine the document.
- Provide a clear commercial upgrade path.
- Check competition-law exposure for field-of-use restrictions.
For licensees:
- Read the scope definition, not just the prohibitions.
- Assume that exceeding scope can be infringement, not merely breach.
- Treat "free for non-commercial use" as a genuine constraint on business use, including internal use.
- Rely on Article 5(2), 5(3) and Article 6 rights notwithstanding contrary clauses — but only if you hold a right to use.
- Do not read UsedSoft as authorising use beyond the licence scope.
Conclusion
EU software law lets a rightholder limit what it grants, and a non-commercial-use restriction is a legitimate way of doing that. The Software Directive's mandatory user rights are narrower than often assumed: Article 8 protects back-up copies, study and testing, and interoperability decompilation — and nothing else.
The sharp edge is that running a program is a reproduction. Use beyond the licensed scope can therefore be an unauthorised restricted act rather than a mere contractual breach, with the stronger remedies that follow. Licensees should treat scope as a copyright boundary, and licensors should draft it as one — while removing the void clauses that so many software licences still contain.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.