DIRECTIVE 2006/116/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 12 December 2006
on the term of protection of copyright and certain related rights
(codified version)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,
Having regard to the Treaty establishing the European Commu-
nity, and in particular Articles 47(2), 55 and 95 thereof,
Having regard to the proposal from the Commission,Having regard to the opinion of the European Economic and
Social Committee (
1),
Acting in accordance with the procedure laid down in Article 251
of the Treaty (2),
Whereas:
(1) Council Directive 93/98/EEC of 29 October 1993 harmo-
nising the term of protection of copyright and certain
related rights (3) has been substantially amended (4). In the
interests of clarity and rationality the said Directive should
be codified.
(2) The Berne Convention for the protection of literary and
artistic works and the International Convention for the
protection of performers, producers of phonograms and
broadcasting organisations (Rome Convention) lay down
only minimum terms of protection of the rights they referto, leaving the Contracting States free to grant longer terms.Certain Member States have exercised this entitlement. In
addition, some Member States have not yet become party
to the Rome Convention.
(3) There are consequently differences between the national
laws governing the terms of protection of copyright and
related rights, which are liable to impede the free movement
of goods and freedom to provide services and to distort
competition in the common market. Therefore, with a view
to the smooth operation of the internal market, the laws of
the Member States should be harmonised so as to make
terms of protection identical throughout the Community.
(4) It is important to lay down not only the terms of protection
as such, but also certain implementing arrangements, such
as the date from which each term of protection is
calculated.
(5) The provisions of this Directive should not affect the
application by the Member States of the provisions ofArticle 14 bis (2)(b), (c) and (d) and (3) of the Berne
Convention.
(6) The minimum term of protection laid down by the Berne
Convention, namely the life of the author and 50 years after
his death, was intended to provide protection for the authorand the first two generations of his descendants. Theaverage lifespan in the Community has grown longer, to thepoint where this term is no longer sufficient to cover two
generations.
(7) Certain Member States have granted a term longer than 50
years after the death of the author in order to offset the
effects of the world wars on the exploitation of authors'
works.
(8) For the protection of related rights certain Member States
have introduced a term of 50 years after lawful publication
or lawful communication to the public.
(9) The Diplomatic Conference held in December 1996, under
the auspices of the World Intellectual Property Organiza-
tion (WIPO), led to the adoption of the WIPO Performancesand Phonograms Treaty, which deals with the protection of
performers and producers of phonograms. This Treaty took
the form of a substantial up-date of the international
protection of related rights.
(10) Due regard for established rights is one of the general
principles of law protected by the Community legal order.
Therefore, the terms of protection of copyright and related
rights established by Community law cannot have the effect
of reducing the protection enjoyed by rightholders in the
Community before the entry into force of Directive 93/98/
EEC. In order to keep the effects of transitional measures to
a minimum and to allow the internal market to function
smoothly, those terms of protection should be applied for
long periods.
(11) The level of protection of copyright and related rights
should be high, since those rights are fundamental to
intellectual creation. Their protection ensures the main-tenance and development of creativity in the interest ofauthors, cultural industries, consumers and society as a
whole.L 372/12 EN Official Journal of the European Union 27.12.2006
(1) Opinion of 26 October 2006 (not yet published in the Official
Journal).
(2) Opinion of the European Parliament of 12 October 2006 (not yet
published in the Official Journal) and Council Decision of30 November 2006.
(
3) OJ L 290, 24.11.1993, p. 9. Directive as amended by Directive 2001/
29/EC of the European Parliament and of the Council (OJ L 167,
22.6.2001, p. 10).
(4) See Annex I, Part A.(12) In order to establish a high level of protection which at the
same time meets the requirements of the internal market
and the need to establish a legal environment conducive tothe harmonious development of literary and artisticcreation in the Community, the term of protection forcopyright should be harmonised at 70 years after the deathof the author or 70 years after the work is lawfully madeavailable to the public, and for related rights at 50 yearsafter the event which sets the term running.
(13) Collections are protected according to Article 2(5) of the
Berne Convention when, by reason of the selection and
arrangement of their content, they constitute intellectual
creations. Those works are protected as such, without
prejudice to the copyright in each of the works forming
part of such collections. Consequently, specific terms of
protection may apply to works included in collections.
(14) In all cases where one or more physical persons are
identified as authors, the term of protection should be
calculated after their death. The question of authorship of
the whole or a part of a work is a question of fact which the
national courts may have to decide.
(15) Terms of protection should be calculated from the first day
of January of the year following the relevant event, as they
are in the Berne and Rome Conventions.
(16) The protection of photographs in the Member States is the
subject of varying regimes. A photographic work within the
meaning of the Berne Convention is to be considered
original if it is the author's own intellectual creation
reflecting his personality, no other criteria such as merit orpurpose being taken into account. The protection of other
photographs should be left to national law.
(17) In order to avoid differences in the term of protection as
regards related rights it is necessary to provide the same
starting point for the calculation of the term throughout
the Community. The performance, fixation, transmission,
lawful publication, and lawful communication to the
public, that is to say the means of making a subject of a
related right perceptible in all appropriate ways to persons
in general, should be taken into account for the calculation
of the term of protection regardless of the country where
this performance, fixation, transmission, lawful publication,
or lawful communication to the public takes place.
(18) The rights of broadcasting organisations in their broadcasts,
whether these broadcasts are transmitted by wire or over
the air, including by cable or satellite, should not be
perpetual. It is therefore necessary to have the term of
protection running from the first transmission of a
particular broadcast only. This provision is understood to
avoid a new term running in cases where a broadcast is
identical to a previous one.(19) The Member States should remain free to maintain or
introduce other rights related to copyright in particular in
relation to the protection of critical and scientificpublications. In order to ensure transparency at Commu-nity level, it is however necessary for Member States whichintroduce new related rights to notify the Commission.
(20) It should be made clear that this Directive does not apply to
moral rights.
(21) For works whose country of origin within the meaning of
the Berne Convention is a third country and whose author
is not a Community national, comparison of terms of
protection should be applied, provided that the term
accorded in the Community does not exceed the term laid
down in this Directive.
(22) Where a rightholder who is not a Community national
qualifies for protection under an international agreement,
the term of protection of related rights should be the same
as that laid down in this Directive. However, this term
should not exceed that fixed in the third country of which
the rightholder is a national.
(23) Comparison of terms should not result in Member States
being brought into conflict with their international
obligations.
(24) Member States should remain free to adopt provisions on
the interpretation, adaptation and further execution of
contracts on the exploitation of protected works and other
subject matter which were concluded before the extension
of the term of protection resulting from this Directive.
(25) Respect of acquired rights and legitimate expectations is
part of the Community legal order. Member States may
provide in particular that in certain circumstances the
copyright and related rights which are revived pursuant to
this Directive may not give rise to payments by persons
who undertook in good faith the exploitation of the works
at the time when such works lay within the public domain.
(26) This Directive should be without prejudice to the
obligations of the Member States relating to the time-limits
for transposition into national law and application of the
Directives, as set out in Part B of Annex I,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Duration of authors' rights
1. The rights of an author of a literary or artistic work within
the meaning of Article 2 of the Berne Convention shall run forthe life of the author and for 70 years after his death, irrespective
of the date when the work is lawfully made available to thepublic.27.12.2006 EN Official Journal of the European Union L 372/132. In the case of a work of joint authorship, the term referred to
in paragraph 1 shall be calculated from the death of the lastsurviving author.
3. In the case of anonymous or pseudonymous works, the
term of protection shall run for 70 years after the work is
lawfully made available to the public. However, when the
pseudonym adopted by the author leaves no doubt as to his
identity, or if the author discloses his identity during the period
referred to in the first sentence, the term of protection applicable
shall be that laid down in paragraph 1.
4. Where a Member State provides for particular provisions on
copyright in respect of collective works or for a legal person to
be designated as the rightholder, the term of protection shall be
calculated according to the provisions of paragraph 3, except if
the natural persons who have created the work are identified as
such in the versions of the work which are made available to the
public. This paragraph is without prejudice to the rights of
identified authors whose identifiable contributions are included
in such works, to which contributions paragraph 1 or 2 shall
apply.
5. Where a work is published in volumes, parts, instalments,
issues or episodes and the term of protection runs from the time
when the work was lawfully made available to the public, the
term of protection shall run for each such item separately.
6. In the case of works for which the term of protection is not
calculated from the death of the author or authors and which
have not been lawfully made available to the public within
70 years from their creation, the protection shall terminate.
Article 2
Cinematographic or audiovisual works
1. The principal director of a cinematographic or audiovisual
work shall be considered as its author or one of its authors.
Member States shall be free to designate other co-authors.
2. The term of protection of cinematographic or audiovisual
works shall expire 70 years after the death of the last of the
following persons to survive, whether or not these persons are
designated as co-authors: the principal director, the author of the
screenplay, the author of the dialogue and the composer of music
specifically created for use in the cinematographic or audiovisual
work.
Article 3
Duration of related rights
1. The rights of performers shall expire 50 years after the date
of the performance. However, if a fixation of the performance is
lawfully published or lawfully communicated to the public
within this period, the rights shall expire 50 years from the date
of the first such publication or the first such communication to
the public, whichever is the earlier.2. The rights of producers of phonograms shall expire 50 years
after the fixation is made. However, if the phonogram has beenlawfully published within this period, the said rights shall expire50 years from the date of the first lawful publication. If no lawfulpublication has taken place within the period mentioned in thefirst sentence, and if the phonogram has been lawfullycommunicated to the public within this period, the said rightsshall expire 50 years from the date of the first lawfulcommunication to the public.
However, this paragraph shall not have the effect of protecting
anew the rights of producers of phonograms where, through the
expiry of the term of protection granted them pursuant to
Article 3(2) of Directive 93/98/EEC in its version before
amendment by Directive 2001/29/EEC, they were no longer
protected on 22 December 2002.
3. The rights of producers of the first fixation of a film shall
expire 50 years after the fixation is made. However, if the film islawfully published or lawfully communicated to the publicduring this period, the rights shall expire 50 years from the date
of the first such publication or the first such communication to
the public, whichever is the earlier. The term ‘film’shall designate
a cinematographic or audiovisual work or moving images,
whether or not accompanied by sound.
4. The rights of broadcasting organisations shall expire 50
years after the first transmission of a broadcast, whether this
broadcast is transmitted by wire or over the air, including by
cable or satellite.
Article 4
Protection of previously unpublished works
Any person who, after the expiry of copyright protection, for the
first time lawfully publishes or lawfully communicates to the
public a previously unpublished work, shall benefit from a
protection equivalent to the economic rights of the author. The
term of protection of such rights shall be 25 years from the time
when the work was first lawfully published or lawfully
communicated to the public.
Article 5
Critical and scientific publications
Member States may protect critical and scientific publications of
works which have come into the public domain. The maximum
term of protection of such rights shall be 30 years from the time
when the publication was first lawfully published.
Article 6
Protection of photographs
Photographs which are original in the sense that they are the
author's own intellectual creation shall be protected in
accordance with Article 1. No other criteria shall be applied to
determine their eligibility for protection. Member States may
provide for the protection of other photographs.L 372/14 EN Official Journal of the European Union 27.12.2006Article 7
Protection vis-à-vis third countries
1. Where the country of origin of a work, within the meaning
of the Berne Convention, is a third country, and the author of the
work is not a Community national, the term of protection
granted by the Member States shall expire on the date of expiry
of the protection granted in the country of origin of the work,but may not exceed the term laid down in Article 1.
2. The terms of protection laid down in Article 3 shall also
apply in the case of rightholders who are not Community
nationals, provided Member States grant them protection.
However, without prejudice to the international obligations of
the Member States, the term of protection granted by MemberStates shall expire no later than the date of expiry of the
protection granted in the country of which the rightholder is a
national and may not exceed the term laid down in Article 3.
3. Member States which, on 29 October 1993, in particular
pursuant to their international obligations, granted a longer term
of protection than that which would result from the provisions
of paragraphs 1 and 2 may maintain this protection until the
conclusion of international agreements on the term of protection
of copyright or related rights.
Article 8
Calculation of terms
The terms laid down in this Directive shall be calculated from the
first day of January of the year following the event which gives
rise to them.
Article 9
Moral rights
This Directive shall be without prejudice to the provisions of the
Member States regulating moral rights.
Article 10
Application in time
1. Where a term of protection which is longer than the
corresponding term provided for by this Directive was already
running in a Member State on 1 July 1995, this Directive shall
not have the effect of shortening that term of protection in that
Member State.2. The terms of protection provided for in this Directive shall
apply to all works and subject matter which were protected in atleast one Member State on the date referred to in paragraph 1,pursuant to national provisions on copyright or related rights, orwhich meet the criteria for protection under [Council Directive92/100/EEC of 19 November 1992 on rental right and lendingright and on certain rights related to copyright in the field ofintellectual property] (
1).
3. This Directive shall be without prejudice to any acts of
exploitation performed before the date referred to in paragraph 1.
Member States shall adopt the necessary provisions to protect in
particular acquired rights of third parties.
4. Member States need not apply the provisions of Article 2(1)
to cinematographic or audiovisual works created before 1 July
1994.
Article 11
Notification and communication
1. Member States shall immediately notify the Commission of
any governmental plan to grant new related rights, including the
basic reasons for their introduction and the term of protection
envisaged.
2. Member States shall communicate to the Commission the
texts of the provisions of internal law which they adopt in the
field governed by this Directive.
Article 12
Repeal
Directive 93/98/EEC is hereby repealed, without prejudice to the
obligations of the Member States relating to the time-limits for
transposition into national law, as set out in Part B of Annex I, of
the Directives, and their application.
References made to the repealed Directive shall be construed as
being made to this Directive and should be read in accordance
with the correlation table in Annex II.
Article 13
Entry into force
This Directive shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
European Union .27.12.2006 EN Official Journal of the European Union L 372/15
(1) OJ L 346, 27.11.1992, p. 61. Directive as last amended by Directive
2001/29/EC.Article 14
Addressees
This Directive is addressed to the Member States.Done at Strasbourg, the 12 December 2006.
For the European Parliament
The President
J. BORRELL FONTELLESFor the Council
The President
M. PEKKARINENL 372/16 EN Official Journal of the European Union 27.12.2006ANNEX I
PART A
Repealed Directive with its amendment
Council Directive 93/98/EEC
(OJ L 290, 24.11.1993, p. 9)
Article 11(2) only
Directive 2001/29/EC of the European Parliament and of the Council
(OJ L 167, 22.6.2001, p. 10)
PART B
List of time-limits for transposition into national law and application
(referred to in Article 12)
Directive Time-limit for transposition Date of application
93/98/EEC 1 July 1995 (Articles 1 to 11) 19 November 1993 (Article 12)
1 July 1997 at the latest as regards
Article 2(1) (Article 10(5))
2001/29/EC 22 December 200227.12.2006 EN Official Journal of the European Union L 372/17ANNEX II
Correlation Table
Directive 93/98/EEC This Directive
Articles 1 to 9
Article 10(1) to (4)
Article 10(5)
Article 11Article 12Article 13(1), first subparagraph
Article 13(1), second subparagraph
Article 13(1), third subparagraphArticle 13(2)—
—
Article 14——Articles 1 to 9
Article 10(1) to (4)—
—
Article 11(1)——
Article 11(2)
—Article 12Article 13
Article 14
Annex IAnnex IIL 372/18 EN Official Journal of the European Union 27.12.2006