1993L0098 — EN — 22.06.2001 — 001.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCIL DIRECTIVE 93/98/EEC
of 29 October 1993
harmonizing the term of protection of copyright and certain related rights
(OJ L 290, 24.11.1993, p. 9)
Amended by:
OfficialJournal
No page date
►M1 Directive 2001/29/EC of the European Parliament and of the Council of
22 May 2001 L 167 10 22.6.2001
▼B
COUNCIL DIRECTIVE 93/98/EEC
of 29 October 1993
harmonizing the term of protection of copyright and certain related
rights
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European EconomicCommunity, and in particular Articles 57 (2), 66 and 100a thereof,
Having regard to the proposalfrom the Commission (
1),
In cooperation with the European Parliament (2),
Having regard to the opinion of the Economic and SocialCommittee (3),
(1) Whereas the Berne Convention for the protection of literary and
artistic works and the InternationalConvention for the protectionof performers, producers of phonograms and broadcastingorganizations (Rome Convention) lay down only minimum termsof protection of the rights they refer to, leaving the Contracting
States free to grant longer terms; whereas certain Member States
have exercised this entitlement; whereas in addition certainMember States have not become party to the Rome Convention;
(2) Whereas 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 andfreedom to provide services, and to distort competition in thecommon market; whereas therefore with a view to the smoothoperation of the internalmarket, the l aws of the Member States
should be harmonized so as to make terms of protection identical
throughout the Community;
(3) Whereas harmonization must cover not only the terms ofprotection as such, but also certain implementing arrangements
such as the date from which each term of protection is calculated;
(4) Whereas the provisions of this Directive do not affect the
application by the Member States of the provisions of Article 14a(2) (b), (c) and (d) and (3) of the Berne Convention;
(5) Whereas the minimum term of protection laid down by the BerneConvention, namely the life of the author and 50 years after hisdeath, was intended to provide protection for the author and thefirst two generations of his descendants; whereas the average
lifespan in the Community has grown longer, to the point where
this term is no longer sufficient to cover two generations;
(6) Whereas certain Member States have granted a term longer than50 years after the death of the author in order to offset the effects
of the world wars on the exploitation of authors' works;
(7) Whereas for the protection of related rights certain Member States
have introduced a term of 50 years after lawful publication orlawful communication to the public;
(8) Whereas under the Community position adopted for the UruguayRound negotiations under the GeneralAgreement on Tariffs andTrade (GATT) the term of protection for producers ofphonograms should be 50 years after first publication;
(9) Whereas due regard for established rights is one of the generalprinciples of law protected by the Community legal order;whereas, therefore, a harmonization of the terms of protection ofcopyright and related rights cannot have the effect of reducing the1993L0098 — EN — 22.06.2001 — 001.001 — 2
(1) OJ No C 92, 11. 4. 1992, p. 6 and
OJ No C 27, 30. 1. 1993, p. 7.
(2) OJ No C 337, 21. 12. 1992, p. 205 and
Decision of 27 October 1993 (not yet published in the Official Journal).
(3) OJ No C 287, 4. 11. 1992, p. 53.
▼B
protection currently enjoyed by rightholders in the Community;
whereas in order to keep the effects of transitionalmeasures to aminimum and to allow the internal market to operate in practice,
the harmonization of the term of protection should take place on a
long term basis;
(10) Whereas in its communication of 17 January 1991 ‘Follow-up tothe Green Paper — Working programme of the Commission inthe field of copyright and neighbouring rights’ the Commissionstresses the need to harmonize copyright and neighbouring rights
at a high level of protection since these rights are fundamental to
intellectual creation and stresses that their protection ensures themaintenance and development of creativity in the interest ofauthors, cultural industries, consumers and society as a whole;
(11) Whereas in order to establish a high level of protection which atthe same time meets the requirements of the internalmarket andthe need to establish a legal environment conducive to the
harmonious development of literary and artistic creation in the
Community, the term of protection for copyright should beharmonized at 70 years after the death of the author or 70 yearsafter the work is lawfully made available to the public, and forrelated rights at 50 years after the event which sets the termrunning;
(12) Whereas 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 crea-tions; whereas those works are protected as such, withoutprejudice to the copyright in each of the works forming part ofsuch collections, whereas in consequence specific terms ofprotection may apply to works included in collections;
(13) Whereas in all cases where one or more physical persons are
identified as authors the term of protection should be calculated
after their death; whereas the question of authorship in the wholeor a part of a work is a question of fact which the nationalcourtsmay have to decide;
(14) Whereas terms of protection should be calculated from the firstday of January of the year following the relevant event, as theyare in the Berne and Rome Conventions;
(15) Whereas Article 1 of Council Directive 91/250/EEC of 14 May1991 on the legal protection of computer programs (
1) provides
that Member States are to protect computer programs, by
copyright, as literary works within the meaning of the BerneConvention; whereas this Directive harmonizes the term ofprotection of literary works in the Community; whereas Article 8of Directive 91/250/EEC, which merely makes provisional
arrangements governing the term of protection of computer
programs, should accordingly be repealed;
(16) Whereas Articles 11 and 12 of Council Directive 92/100/EEC of19 November 1992 on rentalright and l ending right and oncertain rights related to copyright in the field of intellectualproperty (
2) make provision for minimum terms of protection
only, subject to any further harmonization; whereas this Directive
provides such further harmonization; whereas these Articles
should accordingly be repealed;
(17) Whereas the protection of photographs in the Member States isthe subject of varying regimes; whereas in order to achieve asufficient harmonization of the term of protection of photographicworks, in particular of those which, due to their artistic orprofessionalcharacter, are of importance within the internal
market, it is necessary to define the level of originality required in
this Directive; whereas a photographic work within the meaningof the Berne Convention is to be considered originalif it is the1993L0098 — EN — 22.06.2001 — 001.001 — 3
(1) OJ No L 122, 17. 5. 1991, p. 42.
(2) OJ No L 346, 27. 11. 1992, p. 61.
▼B
author's own intellectual creation reflecting his personality, no
other criteria such as merit or purpose being taken into account;whereas the protection of other photographs should be left to
nationall aw;
(18) Whereas, in order to avoid differences in the term of protection as
regards related rights it is necessary to provide the same startingpoint for the calculation of the term throughout the Community;whereas the performance, fixation, transmission, lawful publica-tion, 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 intoaccount for the calculation of the term of protection regardless ofthe country where this performance, fixation, transmission, lawfulpublication, or lawful communication to the public takes place;
(19) Whereas the rights of broadcasting organizations in their broad-
casts, whether these broadcasts are transmitted by wire or over the
air, including by cable or satellite, should not be perpetual;whereas it is therefore necessary to have the term of protectionrunning from the first transmission of a particular broadcast only;whereas this provision is understood to avoid a new term runningin cases where a broadcast is identicalto a previous one;
(20) Whereas the Member States should remain free to maintain or
introduce other rights related to copyright in particular in relation
to the protection of criticaland scientific publ ications; whereas, inorder to ensure transparency at Community level, it is howevernecessary for Member States which introduce new related rightsto notify the Commission;
(21) Whereas it is usefulto make cl ear that the harmonization brought
about by this Directive does not apply to moral rights;
(22) Whereas, for works whose country of origin within the meaning
of the Berne Convention is a third country and whose author isnot a Community national, comparison of terms of protectionshould be applied, provided that the term accorded in theCommunity does not exceed the term laid down in this Directive;
(23) Whereas 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 laiddown in this Directive, except that it should not exceed that fixedin the country of which the rightholder is a national;
(24) Whereas comparison of terms should not result in Member Statesbeing brought into conflict with their international obligations;
(25) Whereas, for the smooth functioning of the internalmarket thisDirective should be applied as from 1 July 1995;
(26) Whereas 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 matterwhich were concluded before the extension of the term ofprotection resulting from this Directive;
(27) Whereas respect of acquired rights and legitimate expectations ispart of the Community legal order; whereas Member States may
provide in particular that in certain circumstances the copyright
and related rights which are revived pursuant to this Directivemay not give rise to payments by persons who undertook in goodfaith the exploitation of the works at the time when such workslay within the public domain,
HAS 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 for the life of the1993L0098 — EN — 22.06.2001 — 001.001 — 4
▼B
author and for 70 years after his death, irrespective of the date when the
work is lawfully made available to the public.
2. In the case of a work of joint authorship the term referred to in
paragraph 1 shall be calculated from the death of the last survivingauthor.
3. In the case of anonymous or pseudonymous works, the term of
protection shall run for seventy years after the work is lawfully madeavailable 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 ofprotection 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 bedesignated as the rightholder, the term of protection shall be calculatedaccording to the provisions of paragraph 3, except if the naturalpersonswho have created the work as such are identified as such in the versionsof 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 contributionsparagraph 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 workwas lawfully made available to the public, the term of protection shallrun 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 notbeen lawfully made available to the public within seventy years fromtheir creation, the protection shall terminate.
Article 2
Cinematographic or audiovisual works
1. The principaldirector of a cinematographic or audiovisualwork
shall be considered as its author or one of its authors. Member Statesshall be free to designate other co-authors.
2. The term of protection of cinematographic or audiovisualworks
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
principaldirector, the author of the screenpl ay, the author of thedialogue and the composer of music specifically created for use in thecinematographic or audiovisualwork.
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 lawfullypublished or lawfully communicated to the public within this period, therights 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 been lawfullypublished within this period, the said rights shall expire 50 years from
the date of the first lawful publication. If no lawful publication has taken
place within the period mentioned in the first sentence, and if thephonogram has been lawfully communicated to the public within thisperiod, the said rights shall expire 50 years from the date of the firstlawful communication to the public.
However, where through the expiry of the term of protection granted
pursuant to this paragraph in its version before amendment by Directive2001/29/EC of the European Parliament and of the Council of 22 May2001 on the harmonisation of certain aspects of copyright and related1993L0098 — EN — 22.06.2001 — 001.001 — 5
▼M1
▼M1
rights in the information society (1) the rights of producers of
phonograms are no longer protected on 22 December 2002, thisparagraph shall not have the effect of protecting those rights anew.
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 is lawfullypublished or lawfully communicated to the public during this period, therights 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 ormoving images, whether or not accompanied by sound.
4. The rights of broadcasting organizations shall expire 50 years after
the first transmission of a broadcast, whether this broadcast istransmitted 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 apreviously unpublished work, shall benefit from a protection equivalentto the economic rights of the author. The term of protection of suchrights shall be 25 years from the time when the work was first lawfullypublished or lawfully communicated to the public.
Article 5
Critical and scientific publications
Member States may protect criticaland scientific publ ications of works
which have come into the public domain. The maximum term ofprotection 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 originalin 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 otherphotographs.
Article 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 aCommunity national, the term of protection granted by the MemberStates shall expire on the date of expiry of the protection granted in thecountry 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
internationalobl igations of the Member States, the term of protectiongranted by Member States shall expire no later than the date of expiry ofthe protection granted in the country of which the rightholder is anational and may not exceed the term laid down in Article 3.
3. Member States which, at the date of adoption of this Directive, in
particular pursuant to their international obligations, granted a longerterm of protection than that which would result from the provisions,referred to in paragraphs 1 and 2 may maintain this protection untilthe1993L0098 — EN — 22.06.2001 — 001.001 — 6
(1) OJ L 167, 22.6.2001, p. 10.▼B
▼B
conclusion of international agreements on the term of protection by
copyright or related rights.
Article 8
Calculation of terms
The terms laid down in this Directive are 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, is already running in a MemberState on the date referred to in Article 13 (1), 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 are protected in at least one Member
State, on the date referred to in Article 13 (1), pursuant to nationalprovisions on copyright or related rights or which meet the criteria forprotection under Directive 92/100/EEC.
3. This Directive shall be without prejudice to any acts of
exploitation performed before the date referred to in Article 13 (1).Member States shall adopt the necessary provisions to protect inparticular acquired rights of third parties.
4. Member States need not apply the provisions of Article 2 (1) to
cinematographic or audiovisualworks created before 1 Jul y 1994.
5. Member States may determine the date as from which Article 2 (1)
shall apply, provided that date is no later than 1 July 1997.
Article 11
Technical adaptation
1. Article 8 of Directive 91/250/EEC is hereby repealed.
2. Articles 11 and 12 of Directive 92/100/EEC are hereby repealed.
Article 12
Notification procedure
Member States shall immediately notify the Commission of any
governmental plan to grant new related rights, including the basicreasons for their introduction and the term of protection envisaged.
Article 13
General provisions
1. Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with Articles 1 to 11 ofthis Directive before 1 July 1995.
When Member States adopt these provisions, they shall contain a
reference to this Directive or shall be accompanied by such reference atthe time of their officialpubl ication. The methods of making such areference shall be laid down by the Member States.1993L0098 — EN — 22.06.2001 — 001.001 — 7
▼B
Member States shall communicate to the Commission the texts of the
provisions of national law which they adopt in the field governed by thisDirective.
2. Member States shall apply Article 12 from the date of notification
of this Directive.
Article 14
This Directive is addressed to the Member States.1993L0098 — EN — 22.06.2001 — 001.001 — 8