1991L0250 — EN — 19.11.1993 — 001.001 — 1
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►B COUNCILDIRECTIVE
of14May1991
onthelegal protectionofcomputerprograms
(91/250/EEC)
(OJ L 122, 17.5.1991, p. 42)
Amended by:
Official Journal
No page date
►M1Council Directive 93/98/EEC of 29 October 1993 L 290 9 24.11.1993
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COUNCILDIRECTIVE
of14May1991
onthelegalprotection ofcomputerprograms
(91/250/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community and in particular Article 100a thereof,
Having regard to the proposal from the Commission(1),
In cooperation with the European Parliament(2),
Having regard to the opinion of the Economic and Social
Committee(3),
Whereas computer programs are at present not clearly protected in all
Member States by existing legislation and such protection, where it
exists, has different attributes;
Whereas the development of computer programs requires the invest-
ment of considerable human, technical and financial resources whilecomputer programs can be copied at a fraction of the cost needed todevelopthem indep endently;
Whereas computer programs are playing an increasingly important role
in a broad range of industries and computer program technology canaccordingly be considered as being of fundamental importance for theCommunity's industrial development;
Whereas certain differences in the legal protection of computer
programs offered by the laws of the Member States have direct and
negative effects on the functioning of the common market as regardscomputer programs and such differences could well become greater asMember States introduce new legislation on this subject;
Whereas existing differences having such effects need to be removed
and new ones prevented from arising, while differences not adversely
affecting the functioning of the common market to a substantial degree
need not be removed or prevented from arising;
Whereas the Community's legal framework on the protection of
computer programs can accordingly in the first instance be limited toestablishing that Member States should accord protection to computer
programs under copyright law as literary works and, further, to estab-
lishing who and what should be protected, the exclusive rights onwhich protected persons should be able to rely in order to authorize orprohibit certain acts and for how long the protection should apply;
Whereas, for the purpose of this Directive, the term ‘computer
program’ shall include programs in any form, including those which
are incorporated into hardware; whereas this term also includes
preparatory design work leading to the development of a computerprogram provided that the nature of the preparatory work is such thata computer program can result from it at a later stage;
Whereas, in respect of the criteria to be applied in determining whether
or not a computer program is an original work, no tests as to the quali-
tative or aesthetic merits of the program should be applied;
Whereas the Community is fully committed to the promotion of inter-
national standardization;
Whereas the function of a computer program is to communicate and
work together with other components of a computer system and with1991L0250 — EN — 19.11.1993 — 001.001 — 2
(1) OJ No C 91, 12. 4. 1989, p. 4; and
OJ No C 320, 20. 12. 1990, p. 22.
(2) OJ No C 231, 17. 9. 1990, p. 78; and Decision of 17 April 1991. yet
published in the Official Journal).
(3) OJ No C 329, 30. 12. 1989, p. 4.
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users and, for this purpose, a logical and, where appropriate, physical
interconnection and interaction is required to permit all elements ofsoftware and hardware to work with other software and hardware and
with users in all the ways in which they are intended to function;
Whereas the parts of the program which provide for such interconnec-
tion and interaction between elements of software and hardware aregenerally known as ‘interfaces’;
Whereas this functional interconnection and interaction is generally
known as ‘interoperability’; whereas such interoperability can bedefined as the ability to exchange information and mutually to use theinformation which has been exchanged;
Whereas, for the avoidance of doubt, it has to be made clear that only
the expression of a computer program is protected and that ideas andprinciples which underlie any element of a program, including those
which underlie its interfaces, are not protected by copyright under this
Directive;
Whereas, in accordance with this principle of copyright, to the extent
that logic, algorithms and programming languages comprise ideas andprinciples, those ideas and principles are not protected under thisDirective;
Whereas, in accordance with the legislation and jurisprudence of the
Member States and the international copyright conventions, the expres-sion of those ideas and principles is to be protected by copyright;
Whereas, for the purposes of this Directive, the term ‘rental’ means the
making available for use, for a limited period of time and for profit-
making purposes, of a computer program or a copy thereof; whereas
this term does not include public lending, which, accordingly, remainsoutside the scope of this Directive;
Whereas the exclusive rights of the author to prevent the unauthorized
reproduction of his work have to be subject to a limited exception inthe case of a computer program to allow the reproduction technicallynecessary for the use of that program by the lawful acquirer;
Whereas 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;
whereas, in the absence of specific contractual provisions, includingwhen a copy of the program has been sold, any other act necessaryfor the use of the copy of a program may be performed in accordancewith its intended purpose by a lawful acquirer of that copy;
Whereas a person having a right to use a computer program should not
be prevented from performing acts necessary to observe, study or test
the functioning of the program, provided that these acts do not infringe
the copyright in the program;
Whereas the unauthorized reproduction, translation, adaptation or trans-
formation of the form of the code in which a copy of a computerprogram has been made available constitutes an infringement of theexclusive rights of the author;
Whereas, nevertheless, circumstances may exist when such a reproduc-
tion of the code and translation of its form within the meaning ofArticle 4 (a) and (b) are indispensable to obtain the necessary informa-
tion to achieve the interoperability of an independently created program
with other programs;
Whereas it has therefore to be considered that in these limited circum-
stances only, performance of the acts of reproduction and translation byor on behalf of a person having a right to use a copy of the program islegitimate and compatible with fair practice and must therefore bedeemed not to require the authorization of the rightholder;
Whereas an objective of this exception is to make it possible to connect
all components of a computer system, including those of differentmanufacturers, so that they can work together;1991L0250 — EN — 19.11.1993 — 001.001 — 3
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Whereas such an exception to the author's exclusive rights may not be
used in a way which prejudices the legitimate interests of the right-holder or which conflicts with a normal exploitation of the program;
Whereas, in order to remain in accordance with the provisions of the
Berne Convention for the Protection of Literary and Artistic Works,the term of protection should be the life of the author and fifty yearsfrom the first of January of the year following the year of his death
or, in the case of an anonymous or pseudonymous work, 50 years
from the first of January of the year following the year in which thework is first published;
Whereas protection of computer programs under copyright laws should
be without prejudice to the application, in appropriate cases, of other
forms of protection; whereas, however, any contractual provisionscontrary to Article 6 or to the exceptions provided for in Article 5 (2)and (3) should be null and void;
Whereas the provisions of this Directive are without prejudice to the
application of the competition rules under Articles 85 and 86 of theTreaty if a dominant supplier refuses to make information availablewhich is necessary for interoperability as defined in this Directive;
Whereas the provisions of this Directive should be without prejudice to
specific requirements of Community law already enacted in respect of
the publication of interfaces in the telecommunications sector orCouncil Decisions relating to standardization in the field of informationtechnology and telecommunication;
Whereas this Directive does not affect derogations provided for under
national legislation in accordance with the Berne Convention on pointsnot covered by this Directive,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Objectofprotection
1. In accordance with the provisions of this Directive, Member
States shall protect computer programs, by copyright, as literary works
within the meaning of the Berne Convention for the Protection ofLiterary and Artistic Works. For the purposes of this Directive, theterm ‘computer programs’ shall include their preparatory design mate-rial.
2. Protection in accordance with this Directive shall apply to the
expression in any form of a computer program. Ideas and principleswhich underlie any element of a computer program, including thosewhich underlie its interfaces, are not protected by copyright under thisDirective.
3. A computer program shall be protected if it is original in the
sense that it is the author's own intellectual creation. No other criteriashall be applied to determine its eligibility for protection.
Article 2
Authorshipofcomputerprograms
1. The author of a computer program shall be the natural person or
group of natural persons who has created the program or, where the
legislation of the Member State permits, the legal person designated
as the rightholder by that legislation. Where collective works are recog-nized by the legislation of a Member State, the person considered bythe legislation of the Member State to have created the work shall bedeemed to be its author.
2. In respect of a computer program created by a group of natural
persons jointly, the exclusive rights shall be owned jointly.
3. Where a computer program is created by an employee in the
execution of his duties or following the instructions given by his1991L0250 — EN — 19.11.1993 — 001.001 — 4
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employer, the employer exclusively shall be entitled to exercise all
economic rights in the program so created, unless otherwise providedby contract.
Article 3
Beneficiaries ofprotection
Protection shall be granted to all natural or legal persons eligible under
national copyright legislation as applied to literary works.
Article 4
Restricted Acts
Subject to the provisions of Articles 5 and 6, the exclusive rights of the
rightholder within the meaning of Article 2, shall include the right to
do or to authorize:
(a) the permanent or temporary reproduction of a computer program
by any means and in any form, in part or in whole. Insofar asloading, displaying, running, transmision or storage of the computerprogram necessitate such reproduction, such acts shall be subject toauthorization by the rightholder;
(b) the translation, adaptation, arrangement and any other alteration of
a computer program and the reproduction of the results thereof,without prejudice to the rights of the person who alters theprogram;
(c) any form of distribution to the public, including the rental, of the
original computer program or of copies thereof. The first sale inthe Community of a copy of a program by the rightholder or withhis consent shall exhaust the distribution right within the Commu-nity of that copy, with the exception of the right to control further
rental of the program or a copy thereof.
Article 5
Exceptionstotherestricted acts
1. In the absence of specific contractual provisions, the acts referred
to in Article 4 (a) and (b) shall not require authorization by the right-
holder 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.
2. The making of a back-up copy by a person having a right to use
the computer program may not be prevented by contract insofar as it isnecessary for that use.
3. The person having a right to use a copy of a computer program
shall be entitled, without the authorization of the rightholder, to
observe, study or test the functioning of the program in order to deter-mine the ideas and principles which underlie any element of theprogram if he does so while performing any of the acts of loading,displaying, running, transmitting or storing the program which he isentitled to do.
Article 6
Decompilation
1. The authorization of the rightholder shall not be required where
reproduction of the code and translation of its form within the meaning
of Article 4 (a) and (b) are indispensable to obtain the information
necessary to achieve the interoperability of an independently createdcomputer program with other programs, provided that the followingconditions are met:
(a) these acts are performed by the licensee or by another person
having a right to use a copy of a program, or on their behalf by aperson authorized to to so;1991L0250 — EN — 19.11.1993 — 001.001 — 5
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(b) the information necessary to achieve interoperability has not
previously been readily available to the persons referred to insubparagraph (a); and
(c) these acts are confined to the parts of the original program which
are necessary to achieve interoperability.
2. The provisions of paragraph 1 shall not permit the information
obtained through its application:
(a) to be used for goals other than to achieve the interoperability of the
independently created computer program;
(b) to be given to others, except when necessary for the interoperability
of the independently created computer program; or
(c) to be used for the development, production or marketing of a
computer program substantially similar in its expression, or for
any other act which infringes copyright.
3. In accordance with the provisions of the Berne Convention for the
protection of Literary and Artistic Works, the provisions of this Articlemay not be interpreted in such a way as to allow its application to beused in a manner which unreasonably prejudices the right holder'slegitimate interests or conflicts with a normal exploitation of the
computer program.
Article 7
Specialmeasuresofprotection
1. Without prejudice to the provisions of Articles 4, 5 and 6,
Member States shall provide, in accordance with their national legisla-tion, appropriate remedies against a person committing any of the actslisted in subparagraphs (a), (b) and (c) below:
(a) any act of putting into circulation a copy of a computer program
knowing, or having reason to believe, that it is an infringing copy;
(b) the possession, for commercial purposes, of a copy of a computer
program knowing, or having reason to believe, that it is aninfringing copy;
(c) any act of putting into circulation, or the possession for commercial
purposes of, any means the sole intended purpose of which is to
facilitate the unauthorized removal or circumvention of any tech-
nical device which may have been applied to protect a computerprogram.
2. Any infringing copy of a computer program shall be liable to
seizure in accordance with the legislation of the Member Stateconcerned.
3. Member States may provide for the seizure of any means referred
to in paragraph 1 (c).
Article 9
Continuedapplicationofotherlegal provisions
1. The provisions of this Directive shall be without prejudice to any
other legal provisions such as those concerning patent rights, trade-
marks, unfair competition, trade secrets, protection of semi-conductorproducts or the law of contract. Any contractual provisions contrary toArticle 6 or to the exceptions provided for in Article 5 (2) and (3) shallbe null and void.
2. The provisions of this Directive shall apply also to programs
created before 1 January 1993 without prejudice to any acts concludedand rights acquired before that date.1991L0250 — EN — 19.11.1993 — 001.001 — 6
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Article 10
Finalprovisions
1. Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive
before 1 January 1993.
When Member States adopt these measures, the latter shall contain a
reference to this Directive or shall be accompanied by such referenceon the occasion of their official publication. The methods of makingsuch a reference shall be laid down by the Member States.
2. Member States shall communicate to the Commission the provi-
sions of national law which they adopt in the field governed by thisDirective.
Article 11
This Directive is addressed to the Member States.1991L0250 — EN — 19.11.1993 — 001.001 — 7