RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q/HUN/1
12 November 1998
(98-4472)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION ON COPYRIGHT AND RELATED RIGHTS
HUNGARY
The present document reproduces the introductory statement made by the delegation of
Hungary, the questions put to it and the responses given in the review of legislation at the Council's
meetings of 12 May 1998 and 16 July 1998.1
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I. INTRODUCTORY STATEMENT
The domestic law applicable to the protection of authors' rights and neighbouring rights
consists today primarily of the Act No. III of 1969 on Copyright and of the Implementing Decree
No. 9/1969 (XII.29.) MM.
The Act and the Decree were amended several times, in order to meet Hungary's international
obligations in this field.
The Act provides protection for literary, scientific and artistic creations.  The Decree itself
contains, however, an illustrative, non-exhaustive enum eration of what has to be considered as "work"
under the Act.  In accordance with Article 10 of the TRIPS Agreement, computer programs enjoy
protection as well.  The most important condition of an intellectual creation being considered as awork is originality.  The Act sets out that authors' rights shall be vested in the person who create the
work.  By doing so, only natural persons may qualify as authors.
The Hungarian Copyright Act distinguishes between personal and economic rights of the
author.
Regarding their substance, the authors' rights are conceived in the Hungarian law as a bundle
of inter-related exclusive rights to prevent others from unauthorized use of the author's work.
Consequently, they are considered absolute rights to permit or to prohibit the use of the work, within
the limits set by the law.
According to the Copyright Act, the economic ri ghts enjoy protection during the lifetime of
the author and for 70 years after his death.
The Hungarian Copyright Act provides protec tion for neighbouring rights in compliance with
the TRIPS Agreement.
                                                     
1 The minutes of these meetings have been circulated in documents IP/C/M/18 and IP/C/M/19
respectively.IP/Q/HUN/1
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The Act No. XI of 1997 (the new Trademark Act, which entered into force on 1 July 1997)
introduced amendments to the Copyright Act in acc ordance with the enforcement provisions of the
TRIPS obligations.
Hungary is a member of the Berne Convention from 1922 and of the Rome Convention from
1994.  Hungary also signed the WIPO treaties in 1996.
Currently, the Hungarian Copyright legislation is under comprehensive revision.  Government
Decision No. 1100/1997 (IX.30.) Korm. on the Overal l Revision of Copyright Legislation prescribed
the principles and requirements to be adopted in the new legal provisions.  These rules are expected to
fully comply with the TRIPS Agreement and EC law as well and to take account of the WIPO
Copyright Treaty and WIPO Performances and Phonograms Treaty.  The new Act is scheduled to beadopted by the new Parliament in the second half of 1998.
II. REPLIES TO QUESTIONS POSED BY THE EUROPEAN COMMUNITIES AND 
THEIR MEMBER STATES
1. Please explain whether and how Hungary provides full retroactive protection to works,
phonograms and performances from other WTO Members as required by Articles 9.1, 14.6 and 70.2
of the TRIPS Agreement, each of which incorporate by reference or rely upon Article 18 of the Berne
Convention.  Please give the date to which such protection extends back with respect to each category
of subject matter.
Please see the reply to US question 4.
2. Article 6 of the Copyright Law provides that rights in works disclosed anonymously or
pseudonymously shall be exercised by the person who fir st discloses the work.  Please explain how this
implements Article 9.1 of the TRIP S Agreement in conjunction with Article 15 of the Berne Convention
which refers in such cases to the publis her/author whose name appears on the work.
Both Article 6 of the Hungarian Copyright Ac t (No. III of 1969, in the following HCA) and
Article 15 of the Berne Convention cover several cases.
Paragraph 1, Article 6 of the HCA corresponds to paragraph 3, Article 15 of the Berne
Convention.  The scope of the HCA rule is, however, wi der than the Berne rule, as it covers not only the
publishing of books, scores or sound recordings but a ll other forms of the disclosure of anonymous and
pseudonymous works.  No doubt, if a work is disclo sed in Hungary as a publication, the name of the
publisher will appear on it "as the person who first discloses the work" and it will be deemed to
represent the author.  The result of the rule is in  full compliance with the Berne Convention.  Should the
anonymous work be disclosed, e.g., in the form of a broadcast, the editor or the broadcastingorganization identified in the programme shall be deemed to represent the author (until the author
reveals his identity).
The HCA complies, therefore, with Article 9.1 of the TRIPS Agreement by granting an even
higher level of protection than required by Article 15(3) of the Berne Convention.
3. Article 18 of the Copyright Law provides that "any person may make a copy of a disclosed work
provided he does not do so for the purpose of putting it into circulation or with gainful intent and does
not prejudice the legitimate interests of the autho r in any other manner".  Please explain how this
provision is applied (by courts) and plea se also give some concrete examples.
The specialized literature understands Article 18, paragraph 1 of the HCA as the case of free
reproduction for personal or private purposes (i.e. for third parties as well).IP/Q/HUN/1
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Copying for a third party means reproduction fo r an identified person and not for laying in
stock of copies (for offering the copies to the public ).  Copies can be made by hand, typewriter, xerox,
electronic devices.  The number of free copies is limited by one of the preconditions ("does not
prejudice the legitimate interests of the author …" ).  No published relevant court cases are known.
4. Article 14.2 of the TRIPS Agreement provides that performers shall have the possibility to
prevent a third person from reproducing the fixation of their performances.  Article 49.1(b) of the
Copyright law seems to introduce additional conditions for such cases.  Please explain whether and how
this complies with the said Article of the TRIPS Agreement.
The question does not include a reference to Article14.6 of the TRIPS Agreement – conditions
permitted by the Rome Convention.  The "additional conditions" questioned are identical with Article
7.1(c), (ii) and (iii).  Further on, the HCA grants a higher protection to foreign performers than the
protection required by the TRIPS Agreement as:
- it grants an exclusive right of authorization instead of "the right to prevent";
- the national treatment is unconditional.
Consequently, Article 49.1(b) HCA complies with Article 14.1 of the TRIPS Agreement.
5. In the light of the protection required by Article 14.2 of the TRIPS Agreement, does the
Copyright Act or any other provision of the H ungarian law protect digital reproduction or digital
transmission of phonograms.
Article H50/B(1) provides exclusive "right of  reproduction" to the producers of phonograms.  It
covers "direct and indirect reproduction" like the TR IPS Agreement.  The text does not specify – again
the same way as the TRIPS Agreement – whether "r eproduction" includes "digital reproduction" as well.
Neither the TRIPS Agreement nor the HCA grants a "digital transmission right " to the producers of
phonograms.
6. Please explain how the Hungarian Copyright  Law implements Article 14.3 of the TRIPS
Agreement.
Article 14.3 of the TRIPS Agreement is to be understood together with Article 14.6 of the same
Agreement and Article 13 of the Rome Convention especially.  The HCA implements these rules as
follows:
Article 50/F-(1) Unless otherwise provided by this Act, the radio or television organization's
authorization shall be required for its programme to be:
(a) broadcast or communicated to the public by other radio or television organizations or
by cable operators;
(b) recorded;
(c) reproduced after recording, if the recording was made without authorization or the
recording was made pursuant to Article 50I(2) and the reproduction is made for a
purpose other than that to which Article 50I(2) relates.IP/Q/HUN/1
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(2) Unless otherwise provided by this Act, the television organization's authorization shall be
required for its programme to be communicated to the public in a room where the programme is
accessible to the public on payment of an entrance fee.
(3) The uses referred to in paragraphs (1) and (2) shall be subject to payment of remuneration,
unless otherwise provided by law.
(4) Where an original programme is communicated to the public by cable, paragraphs (1) to (3)
shall apply, mutatis mutandis .
As to the superficiality of the Hungarian level of protection compared to "the TRIPS
Agreement and Rome requirements", see the two el ements mentioned at the end of answer four.
7. Articles 12 and 9.1 of the TRIPS Agreement in  conjunction with Article 7.4 of the Berne
Convention provide for a term of protection of  50 and 25 years.  Article 51.1 and 2 of the Copyright
Law, however, seem to limit the term of protecti on to 15 years e.g., for certain photographs and films.
Please explain how this complies  with the said Articles of the Berne Convention and the TRIPS
Agreement.
Article 12 of the TRIPS Agreement and Article 7(4) of the Berne Convention – referred to in
Article 9.1 of the TRIPS Agreement – speak about the te rm of protection of works.  On the contrary, the
subject matter of Article 51 of the HCA are – amon g others – certain photographs and films which are
not eligible for the copyright protection at all.  This is  stated explicitly in the text of the statute (see also
paragraph 1 of Article 36 of the Implementati on Decree No. 9/1969 (XII.29.)  MM).  Such productions
do not have enough originality to qualify as works.  The legislation, however, offers a shorter sui generis
protection for them, subject to certain conditions.
It is to be mentioned that the Hungarian C opyright Act includes such other Articles as well
which cover subject matters other than copyright a nd related rights (e.g. Article 54A, Domain Public
Payant).
The Hungarian Government declared its intention to cancel Article 51 at the time of the next
revision of the HCA.
III. REPLIES TO QUESTIONS POSED BY JAPAN
1. Please explain whether and how the Copyright Law of Hungary provides protection for works,
phonograms and performances of othe r WTO Members, and please describe the provision in the
Copyright Law of Hungary which provides for the national treatment (NT) and most-favoured-nation
treatment (MFN) as required by  TRIPS Article 3, Article 4, and Article 9.1 incorporating Berne
Article 5.1.
The Hungarian Copyright Act (No. III of 1969) lim its its applicability w ith regard to subject
matters of foreign origin only concerning works .  Any work first made available to the public abroad (in
the broadest sense of public availability, not restricted to publication and including, inter alia , also
public performance) shall be covered by the Act only if the author is a Hungarian citizen (it is not
enough to have a domicile in the country) or is entitled to protection under any international treaty or on
the basis of reciprocity (Act Article 2).  It follows fro m this rule that any work of a foreign author first
made available to the public in Hungary comes under the coverage of the Act.
It should be noted that the restriction exp licitly provided for in the Act as regards its
applicability does not extend to subject-matters other than works.  According to Article 8 of the Civil
Code, which applies to questions not dealt with in the Act, in the Republic of Hungary every naturalIP/Q/HUN/1
Page 5
person enjoys legal capacity and may have rights and obligations.  Consequently, the enjoyment of
rights recognized by the Hungarian law may only be restricted with regard to foreigners by special
legislation.  Concerning neighbouring rights, such limita tions are not contained in the Act.  Thus, in this
respect, the Act also applies to foreign owners of ri ghts whether or not the subject matter of their rights
originated in Hungary.
Under the relevant international conventions, the Act applies to subject-matters of foreign origin
by virtue of the respective rules providing national tr eatment of foreign owners of rights.  In addition to
this, foreigners may enjoy in Hungary, as regards their works originating outside the country, the rights
provided for in the substantive provisions of the a pplicable conventions.  An international treaty ratified
by the Parliament becomes a part of the body of H ungarian law and is, so far as its provisions are
susceptible to direct application, self-executing.  The Berne Convention (Paris text of 1971) was enacted
by Law-Decree 4 of 1974, the TRIPS was ratified by the Decision No. 72/ 1994 (XII.27.) OGY of the
Parliament and promulgated by Act No. IX of 1998.  This answers the question concerning MFN as
well.
Therefore, the Copyright Law of Hungary complies with Articles 3, 4 and 9.1 of TRIPS.
2. Please explain exceptions or exemptions for NT and MFN, if any, in the Copyright Law of
Hungary as permitted by Articles 3 and 4 of the TRIPS Agreement.
The only exception for national treatment in the Copyright Law of Hungary is the comparison
of the term of protection in the country of protecti on and the country of origin respectively.  The legal
source is Decree of Law No. 4 of 1974 en acting the Berne Convention Article 7(8).
Therefore, the Copyright Law of Hungary complies with Articles 3 and 4 of TRIPS.
3. Please explain whether "computer programs" in Article 1(1) of Decree No. 9/1969. (XII.29.)
MM Implementing Act No. III of 1969 on Copyright, wh ich provides for the protection of computer
programs, include computer progra ms in both source code and object code and please explain how the
Copyright Law of Hungary complies with Article 10.1 of the TRIPS Agreement in this respect.
The copyright Act refers to literary, scientific  and artistic creations in general rather than
providing for a definition of the notion of "work" (Article 1/1).  The Impl ementing Decree No. 9/1969
(XII.29.) MM contains, however, an illustrative, non-exhaustive enumeration of what has to be
considered as "work" under the Act.  It provides e xplicitly that works have to be protected whether or
not specified in the Act and offers thereafter a long list of categories of creations which have to be
recognized as the subject matter of author's rights. Over and above the traditional kinds of works such as
literary works, speeches, musical compositions, dramatic works, radio and television plays, andcinematographic works, it also mentions buildings and technical constructions (e.g. bridges, water
energy plants), plans of architect ure (including compounds of buildings) as well as town planning
projects, plans for technical constructions and "s oftware", the latter "being understood as comprising
computer programs with related documentation" (Decr ee Article 1/1).  "Related documentation" clearly
covers source code and object code as well.
The Hungarian court practice went even further:  it strengthened the special work category
character of software by acknowledging authors' ri ghts protection of the first software development
phase (such as problem analysis schemes) as software, even when this preliminary stage of development
does not result in a finished program.
In Hungary, it would be illogical to term "computer software" as "literary works" in the present,
non-exhaustive enumeration of work categories of the Implementing Decree.  The Decree enumerates
literary (scientific, artistic) works, speeches, radio play s, theatre plays etc.  They are all literary works inIP/Q/HUN/1
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a wide sense.  It was very logical to add computer programs to these examples.  Literary works (in a
restricted sense) are works communicated to the public in  writing.  This is not characteristic of computer
programs.
Therefore, the Copyright Law of Hungary is in compliance with Article 10.1 of TRIPS.
4. Please explain whether "collected works" in  Article 5(3) of the Copyright Law of Hungary,
which provides for the protection of collected work s, include compilations of data in machine readable
form and please explain how the Copyright Law of  Hungary complies with Ar ticle 10.2 of the TRIPS
Agreement in this respect.
An original collection (compilation) of works of  one and the same author or of several ones
may, as an entity, also constitute a work (Copyright Ac t, Article 5/3).  These provisions similarly apply
to databases operated by means of computer technology,  as it is explicitly stated in Article 3B of the
Implementing Decree.  It should be noted in this c ontext that an original selection and compilation of
materials other than works may likewise be protected under the law on authors' rights.
"Eye-readability" is not a precondition of the eligib ility for protection for any work category (see also
answer 3).
Therefore, the Copyright Act of Hungary complies with Article 10.2 of TRIPS.
5. Please explain which Article of the Copyright  Law of Hungary provides for rental rights of
computer programs and cinematogr aphic works and please explain how the Copyright Law of Hungary
complies with Article 11 of the TRIPS Agreement in this respect.
Article 13 of the Act No. III of 1969 ensures to the author "exploitation" as an economic right
by means of a general clause stating without any par ticulars:  Any exploitation of the work is subject to
the licence of the author, unless otherwise provided fo r by law.  The underlying reasons is that it would
have been rather difficult to define exactly the mode s of exploitation in full detail and that in this way
any new mode of exploitation that may emerge with  the development of technology automatically falls
within the scope of the law.
The general concept of the exploitation of copyright is further defined by Article 10,
paragraph (1), of Implementing Decree No. 9/1969 (XII.29.) MM as follows:  "Pursuant to the Act,
exploitation shall be taken to mean the process wher eby the work or part of it is communicated to the
public".  Public distribution and rental clearly fit in with the notion of "exploitation".  The authors'
rights, under the Copyright Act, do not exhaust with th e sale of copies in respect of either computer
programs, the video versions of films or other work categories.
The Copyright Law of Hungary, therefore, is in compliance with Article 11 of the TRIPS
Agreement.
IV. REPLIES TO QUESTIONS POSED BY THE UNITED STATES
1. Please explain whether and how Hungarian la w provides protection for works, phonograms
and performances from other WTO Members, and wh ether and how it does so on the basis of national
treatment, as required by TRIPS Article 3 (gener ally, with respect to all copyrights and neighbouring
rights) and Article 9.1 (incorporating Berne Article 5( 1)).  In particular, please explain how national
treatment is afforded  with respect to the distribution of bl ank tape levies under Article 50J of the
Hungarian Law on Copyright  and Neighbouring Rights.
The Hungarian Copyright Act (No. III of 1969) lim its its applicability with regard to subject
matters of foreign origin only concerning works.  An y work first made available to the public abroad (inIP/Q/HUN/1
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the broader sense of public availability, not restricted to publication and including, inter alia , also public
performance) are covered by the Act only if the author is a Hungarian citizen (it is not enough to have a
domicile in the country) or is entitled to protection under any international treaty or on the basis of
reciprocity (Act Article 2).  It follows from this rule that any work of a foreign author first made
available to the public in Hungary comes under the coverage of the Act.
It should be noted that the restriction exp licitly provided for in the Act as regards its
applicability does not extend to subject matters other than work.  According to Article 8 of the Civil
Code, which applies to questions not dealt with by the Act, in the Republic of Hungary every natural
person enjoys legal capacity and may have rights and obligations.  Consequently, the enjoyment of
rights recognized by the Hungarian law may only be restricted with regard to foreigners by special
legislation.  Concerning neighbouring rights, such limita tions are not contained in the Act.  Thus, in this
respect, the Act also applies to foreign owners of ri ghts whether or not the subject matter of their rights
originated in Hungary.
Under the relevant international conventions, the Act applies to subject matters of foreign origin
by virtue of the respective rules providing national tr eatment of foreign owners of rights.  In addition to
this, foreigners may enjoy in Hungary, as regards their works originating outside the country, the rights
provided for in the substantive provisions of th e applicable conventions.  An international treaty
promulgated by law becomes a part of the body of  Hungarian domestic law and is, so far as its
provisions are susceptible to direct application, se lf-executing.  The Berne Convention (Paris text of
1971) was enacted by Law-decree 4 of 1974, the TRIPS was ratified by the Decision No. 72/1994
(XII.27.) OGY of the Parliament and promulgated by  Act Nr. IX of 1998.  This answers the question
concerning national treatment as well.
Therefore, the Copyright Law of Hungary co mplies with Articles 3, 4 and 9.1 of the TRIPS
Agreement.
The same applies to the blank tape levies as well.
2. Does Hungary apply the "rule of the shorter term" to phonograms and perf ormances from other
WTO members?  If so, please explain how you justify such action under TRIPS Article 4.
Hungary does not apply the "rule of shorter term" to phonograms and performances from other
WTO members.
3. Please explain whether and how Hungary pr otects against both the direct and indirect
reproduction of phonograms as required by TRIPS Arti cle 14.2, including by digital transmission in the
context of subscription or interactive services.
According to Article 50B of the Hungarian Copyright Act the authorization of the phonogram
producer is necessary for making a copy of a phonogram either directly or indirectly.  As to the
reproduction of phonograms including by digital tr ansmission in the context of subscription or
interactive services, it will be clarified by an amen dment to the Copyright Act foreseen for the second
half of the year, that exclusive right of producer s of phonograms do include the right to authorize such
use of the phonograms in line with the new WIPO  Treaty, which Hungary intends to ratify.
4. Please explain whether and how Hungary prov ides full retroactive protection to works,
phonograms and performances from other WTO Membe rs, as required by TRIPS Articles 9.1, 14.6 and
70.2, each of which incorporate by reference or re ly upon Berne Article 18.  Please give the date back
to which such protection extends with resp ect to each category of subject matter.IP/Q/HUN/1
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The term of protection for copyright has been harmonized at 70 years after the death of the
author or 70 years after the work is lawfully made available to the public, and for related rights at 50
years after the event which sets the term running.  The TRIPS Agreement has also provided that the term
of protection available under that Agreement to performers and producers of phonograms must last at
least until the end of a period of 50 years computed  from the end of the calendar year in which the
fixation was made or the performance took place.
It was in line with the provisions of the Agreement that Hungary extended the term of
protection from 50 years to 70 years post mortem auctoris  for authors, and from 20 years to 50 years for
neighbouring rights owners.  These amendments to the copyright Act were introduced by Act No. V11
of 1994, and entered into force on 1 July 1994.
However, one of the transitional provisions of the Act (namely Article 29) makes it clear that,
although such works, performances, phonograms (sound recordings) and broadcasts that were protected
on the date of entry into force of the Act may bene fit from the longer term of protection introduced by
the Act, those works, performances, phonograms and broa dcasts that have fallen into the public domain
in Hungary because of the expiry of the term of protection may not be protected anew.  We have
considered this provision to be in conformity with  the provisions of Article 18 of the Berne Convention
applicable to the rights of performers and producer s of phonograms.  However, on the basis of extensive
consultation we have held with associations, we ha ve arrived to the conclusion that our position on this
matter should be reconsidered in view of the pr evailing interpretation of the above-mentioned
provisions.
This is reflected by Section 3(f) of Govern ment Decision No. 1100/1997.  (IX. 30) Korm. on the
comprehensive reform of Hungarian Copyright Law, which provides that, the transitional provision of
Act No. VII of 1994 on the extension of the term of protection of copyright and neighbouring rights will
have to be revised.  This means that Hungary is ready to accept the prevailing interpretation of the
TRIPS Agreement and the Berne Convention and to provide that even those works, performances,
phonograms that have fallen into the public that even in Hungary because of the expiry of the term of
protection may be protected anew for the remaining period.  However, when taking such a legislative
step and deciding on its transitional arrangements, due account will have to be taken of the respect of
acquired rights and legitimate expectations which can be derived from the Constitution of Hungary and
the judgements of the Hungarian Constitutional Court.
5. Please explain whether and how compila tions of data, including those that are
computer-generated, are protected by Hungar ian law as required by TRIPS Article 10.2.
An original collection (compilation) of works of  one and the same author or of several ones,
may, as an entity, also constitute a work (Copyright Ac t, Article 5/3).  These provisions similarly apply
to databases operated by means of computer technology,  as it is explicitly stated in Article 3B of the
Implementing Decree.  It should be noted in this c ontext that an original selection and compilation of
materials other than works may likewise be protected  under the law on author's rights.  "Eye-readability"
is not a precondition of the eligibility for protect ion for any work category (see also Answer 3).
Therefore, the Copyright Act of Hungary complies with Article 10.2 of TRIPS.
6. Please explain how Article 17(2), which permits  the reproduction of any part of a work or the
whole of a work of small size for educational or scientific purposes, complies with Berne Article 9(2)
and TRIPS Article 13.
According to Article 17(2) of the Hungarian Copy right Act any part of a disclosed work, or the
whole of a work of a small size, may be reproduced  for the purposes of school education – includingIP/Q/HUN/1
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radio or television courses – and for the propagation of scientific knowledge, provided the source and
the author shown as such are named.
This provision does not conflict with a normal exploitation of the work and does not
unreasonably prejudice the legitimate interests of th e right holder; therefore it is in compliance with
Article 13 of the TRIPS Agreement.
7. Please confirm whether and how Hungarian law provides rental rights for computer programs
as required by TRIPS Article 11.
Article 13 of the Hungarian Copyright Act ensure s to the author "exploitation" as an economic
right by means of a general clause stating without any particulars:  any exploitation of the work is
subject to the licence of the author, unless otherwise provided for by law.  The underlying reason is that
it would have been rather difficult to define exactly the modes of exploitation in full details and that in
this way any new mode of exploitation that ma y emerge with the development of technology
automatically falls within the scope of the law.
The general concept of the exploitation of copyright is further defined by Article 10,
paragraph (1) of Implementing Decree No. 9/1969.  (XII.29) MM as follows:  "Pursuant to the Act,
exploitation shall be taken to mean the process wher eby the work or part of it is communicated to the
public".  Public distribution and rental clearly fit in with the notion of "exploitation".  The authors'
rights, under the Copyright Act, do not exhaust with th e sale of copies in respect of either computer
programs, the video versions of films or other works.
The Copyright Law of Hungary therefore is in compliance with Article 11 of the TRIPS
Agreement.
8. Please explain how Article 21, which permits the performance of  a work for educational
purposes, complies with Berne Articles 11 and 11ter  and TRIPS Article 13.
According to Article 21(1) of the Hungarian Copyright Act, a work, which is already disclosed,
may be performed at school celebrations and for other school purposes.  In our view, it is in compliance
with Article 13 of the TRIPS Agreement, but change s, further restrictions are planned to make this
compliance more obvious and to take account of the latest technological developments.
__________