Short answer
Yes, where the copy is necessary for the customer's own use. A licence clause prohibiting it is void.
The right itself:
"The making of a back-up copy by a person having a right to use the computer program may not be prevented by contract in so far as it is necessary for that use." —
And the sanction for trying:
"Any contractual provisions contrary to Article 6 or to the exceptions provided for in Article 5(2) and (3) shall be null and void." —
This is unusually strong. Most EU copyright exceptions can be displaced by contract. Article 5(2) and Article 5(3), and the decompilation right in Article 6, are expressly protected against it.
Two conditions limit the right, and both matter:
- The person must have a right to use the program.
- The copy must be necessary for that use.
It is a continuity-of-use right. It is not a general right to copy software, and it is not a right to create a transferable second copy.
Who is "a person having a right to use"
The right attaches to lawful use, not to ownership of a particular medium. A licensee under a valid licence qualifies. So, following UsedSoft (C-128/11), does a second acquirer of a copy whose distribution right has been exhausted, who becomes a lawful acquirer entitled under Article 5(1) to the reproduction necessary to use the program.
A person using the software without any entitlement does not qualify. The back-up right does not cure an unlicensed position.
"Necessary for that use" is the real limit
This is where most disputes sit, and the word does substantive work.
Where a back-up is readily defensible:
- The software was supplied on physical media that can be damaged or lost.
- The vendor provides no reliable re-download, or download availability is time-limited.
- The program is business-critical and downtime while awaiting re-supply would be material.
- The vendor may cease to exist or withdraw the version in use.
- Air-gapped or regulated environments where re-download is not operationally available.
Where it is weaker:
- The vendor provides permanent, reliable re-download on demand, so a local copy adds little to continuity.
- The customer seeks multiple copies beyond what continuity requires.
- The purpose is not continuity but distribution, testing on additional machines, or retention after the licence ends.
The provision says "a back-up copy". It does not authorise a library of copies, and it does not authorise copies for purposes other than preserving the user's own ability to use the program.
Note also that the right is to make the copy. It does not extend the licence: when the right to use ends, the basis for holding the back-up ends with it.
What a back-up copy may not be used for
Ranks and Vasiļevičs (C-166/15) addressed the position where the original physical medium had been damaged, destroyed or lost, and the possessor sought to sell the back-up copy on.
The answer is that Article 5(2) does not support it. The exception preserves the lawful user's own use. It does not authorise putting the back-up copy on the market as a substitute for the original, even where the original has genuinely been lost.
The practical rule: a back-up copy is for you, and it stays with you. If the licence is resold under the UsedSoft conditions, the original copy must be made unusable — and so must the back-up.
Related rights protected by the same provision
Article 8 also protects Article 5(3) and Article 6, and it is worth knowing what else a licence cannot take away.
Observation, study and testing — Article 5(3). A person having a right to use a copy may, without authorisation, observe, study or test the functioning of the program to determine the ideas and principles underlying any element of it, while performing acts of loading, displaying, running, transmitting or storing that they are entitled to do. A clause prohibiting benchmarking or behavioural analysis of this kind is null and void.
Decompilation — Article 6. Reproduction and translation of code are permitted where indispensable to obtain information necessary to achieve interoperability of an independently created program, subject to the conditions in Article 6(1) — performed by a licensee or person with a right to use, the information not previously readily available, and confined to the necessary parts. Article 6(2) restricts use of the information obtained, and Article 6(3) preserves the Berne-derived proviso against unreasonable prejudice to the rightholder.
Article 5(1) is different. The right to make reproductions necessary for use in accordance with the intended purpose, including error correction, applies "in the absence of specific contractual provisions" and is not listed in Article 8. Contract can therefore regulate it in a way it cannot regulate Article 5(2), 5(3) or Article 6.
That asymmetry is frequently misstated as "the Software Directive overrides licence terms". It overrides some of them.
Where the right does not reach
Software as a service. Where the customer holds no copy and the software runs on the provider's infrastructure, there is nothing to back up under Article 5(2). Continuity is a contractual question — exit assistance, escrow, data export — not a copyright one.
Data, not programs. The Directive protects computer programs. Backing up the customer's own data is governed by the contract and, for personal data, by data-protection obligations.
Non-software works. Article 5(2) has no equivalent for films, music or e-books. The InfoSoc private-copying exception in Article 5(2)(b) of Directive 2001/29/EC is optional for Member States, subject to fair compensation, and is not protected against contractual override in the same way.
Circumventing technical measures. Article 7(1)(c) of the Software Directive addresses means whose sole intended purpose is to facilitate unauthorised removal or circumvention of technical devices applied to protect a program. A back-up right does not authorise trafficking in circumvention tools; where a protection measure impedes a genuinely necessary back-up, that is a matter to raise with the vendor rather than to solve unilaterally.
Practical guidance
For customers:
- Treat a clause banning back-ups as unenforceable, but keep the copy within what continuity requires.
- Make one back-up, for your own use, and record why it is necessary.
- Do not distribute, resell or transfer the back-up.
- Destroy it when the right to use ends or the licence is resold.
- For SaaS, negotiate continuity contractually; Article 5(2) will not help.
For vendors:
- Remove outright back-up prohibitions; they are void and signal poor drafting.
- Regulate what you legitimately can — restricting the number of copies to what is necessary, and requiring destruction on termination.
- Providing reliable permanent re-download reduces what is "necessary", which is a better commercial answer than a void clause.
- Do not extend the prohibition to Article 5(3) testing or Article 6 decompilation; those clauses are void as well.
Operational checklist
- Confirm the user has a right to use the program.
- Assess and document why a back-up is necessary for continued use.
- Limit to what continuity requires.
- Keep the back-up internal; never resell or transfer it.
- Destroy on termination or on resale of the licence.
- Treat Article 5(1) differently — contract can regulate it.
- For hosted software, address continuity in the contract instead.
Conclusion
Article 5(2) gives a lawful user a back-up right that no licence can remove, and Article 8 makes any contrary clause null and void. That is a genuinely mandatory user right, and vendors who still prohibit back-ups are relying on terms that do not work.
The right is bounded by necessity. It preserves the user's own ability to keep using the program — one copy, for that purpose, for as long as the right to use lasts. It does not create a second saleable copy, as Ranks confirms, and it has no application at all where the customer never holds a copy in the first place.
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.