No C 329/4 Official Journal of the European Communities 30. 12. 89 
Opinion on the proposal for a Council Directive on the legal protection of computer 
programs^) 
(89/C 329/02) 
On 23 January 1989, the Council decided, in accordance with Article 100 A of the Treaty 
establishing the European Economic Community, to consult the Economic and Social Com­
mittee on the abovementioned proposal. 
The Section for Industry, Commerce, Crafts and Services was instructed to prepare the work 
on this topic and adopted its Opinion on 4 October 1989. The Rapporteur was Mr Moreland. 
The Economic and Social Committee, at its 270th plenary session, meeting on 18 October 
1989, adopted unanimously the following Opinion. 
1. Summary of the Commission's proposal 
1.1. The draft Directive introduces into Community 
law the concept of the protection of computer programs 
through the law of copyright. This concept already 
exists in the law of several Member States. The proposal 
does not introduce a specific law but rather proposes 
that Member States should accord computer programs 
the same copyright protection that they accord to liter­
ary works. In addition the term of protection is to be 
50 years from the date of creation of the program. 
1.2. However, the proposal goes on to exempt from 
protection 'ideas, principles, logic, algorithms or pro­
gramming language underlying the program'. It also 
makes lawful the use by the public of programs in non­
profit making public libraries. 
1.3. The proposal gives rights to the commissioner 
of programs rather than the creator and to the employer 
rather than the employee (unless otherwise provided by 
contract). 
2. General comments 
2.1. The Committee welcomes the Commission's 
proposal as a means of ensuring appropriate copyright 
protection for the Community's computer and software 
industry and in eliminating barriers to trade in the 
Community. 
The Committee recognizes that absolute precision in 
the wording is extremely difficult for the first draft of 
a directive on this complex subject. It believes that a 
number of drafting changes are required as specified 
under part 3. That detailed changes are in some places 
recommended should not detract from the Committee's 
overall approval of the draft. 
2.2. The Committee believes that the Commission's 
approach has two significant advantages : 
(!) OJNoC91, 12.4. 1989. 1. In according computer programs the same protec­
tion as literary works use can be made of a 'ready 
made' copyright law. The lengthy process of adaptation 
and development of the new law that a 'sui generis' 
approach would bring is avoided. 
2. The approach is intended to bring computer pro­
grams within the definition of 'literary works' in the 
Berne convention (this could be made more explicit in 
the directive). The advantage of this approach is that 
it encourages States outside the Community to treat 
Community programs as copyright works entitled to 
the protection of the law. 
Indeed, the more closely Community law is assimilated 
to the Berne convention the greater this advantage 
becomes. If the Member States are all in closer harmony 
with the Berne convention then, in the opinion of the 
Committee, the ability of the Member States to influ­
ence the forthcoming discussions on the revision of the 
convention will be enhanced. 
The Committee recognizes that clauses designed for the 
purposes of 'literary works' the Berne convention may 
not be entirely appropriate for 'computer programs' 
and that rules to take account of their specific character­
istics will be needed. 
Nevertheless the Committee stresses the importance of 
being as close to the Berne convention as possible. 
2.3. One matter of concern, however, is that the 
proposal still leaves open the possibility of the continu­
ation of barriers to the free movement of computer 
programs within the Community through, for example, 
the co-existence of different definitions of 'originality' 
in Member States' laws. 
2.4. The Committee believes that the Commission's 
proposal will not restrict the spread and understanding 
of information technology. However, it stresses the 
importance of ensuring that no undesirable restrictions 
exist through the enforcement of the competition pro­
visions of the Treaty. 
2.5. The Committee supports the need to ensure that 
computer programs receive adequate protection and 
believes that there are clear advantages in the establish­
ment of a copyright law regulating the protection of 
computer programs in Community legislation. 
30. 12. 89 Official Journal of the European Communities No C 329/5 
2.6. Consequently the Committee welcomes the pro­
posal from the Commission, subject to the following 
specific comments. 
3. Specific comments 
3.1. Preamble: Eighth recital 
3.1.1. It should be made clear whether the 'interfaces' 
referred to in this recital are the interfaces themselves, 
or the specifications for those interfaces. 
3.1.2. There is no dispute that 'ideas and principles' 
are outside the protection of the law of copyright. It 
is, therefore, superfluous to state that the ideas and 
principles behind the interfaces are 'not copyrightable 
subject matter', because ideas and principles behind any 
program are 'not copyrightable subject matter'. 
3.1.3. To take these two points into account, the 
whole recital could be deleted in its entirety without 
affecting the substance of the proposal. Alternatively, 
the recital could be amended to read as follows: 
'Whereas for this purpose a logical and, where 
appropriate, physical interconnection and interac­
tion is required to permit all elements of software 
and hardware to work with other software and 
hardware and with users in all the ways in which 
they are intended to function. Any such means of 
interconnection and interaction are generally 
known as 'interfaces'. Interfaces are protectable in 
the same way as any other copyright computer 
program.' 
3.2. Preamble: Ninth recital 
In view of the importance of the.international copyright 
conventions to the means of protection chosen for 
programs which are eligible for copyright protection it 
might be useful to add to the end of this recital 
'... and to the principle of compliance by each 
Member State to the provisions of the International 
Convention for the Protection of Literary and Artis­
tic Works (the Berne convention).' 
33. Article 1—Object of protection 
3.3.1. Article 1 : Paragraph 2 
As stated in part 2 above, the Committee considers 
that the protection of computer programs through the 
medium of the 'literary works' provisions of the Berne convention should be explicitly referred to in the draft. 
Therefore the paragraph should conclude with the 
words: 
'in the context of the Berne convention'. 
3.3.2. Article 1: Paragraph 3 
3.3.2.1. The Committee supports the exclusion of 
ideas and principles from copyright protection as com­
puter programs. 
3.3.2.2. 'Logic' and 'algorithms' are not clear terms 
and are frequently interchangeable. In any event, in the 
current state of technology and of Member States' 
legislation, few would argue that 'logic', 'algorithms' 
and 'programming languages' are within a definition of 
'computer programme'. Consequently specific reference 
in this article to these terms as requiring exclusion from 
protection only serves to confuse and cause unnecessary 
debate. Consequently the Committee believes they 
should be removed. 
3.3.2.3. As has been stated above, it is not in dispute 
that 'ideas and principles' are not susceptible of copy­
right protection. It is superfluous here, just as in the 
preamble, to state that the ideas and principles behind 
the interfaces are 'not copyrightable subject matter'. 
The second sentence could be deleted. The Committee 
understands and supports the concern that the pro­
prietors of the copyright in interfaces may exercise their 
rights in an anti-competitive matter. The Committee, 
however, remains convinced that the second sentence 
of Article 1.3. adds nothing to the control of anti­
competitive practices which it is the clear responsibility 
of the Commission to enforce through the Competition 
rules of the Community. 
3.3.2.4. The paragraph could therefore read as fol­
lows: 
'Protection in accordance with this Directive shall 
apply to the expression in any form of a computer 
program but shall not extend to the ideas or prin­
ciples which underlie the program.' 
3.3.3. Article 1 : Paragraph 4 
3.3.3.1. The Commission does not define 'orig­
inality'. As the interpretation of this word in law differs 
from Member State to Member State, this clause does 
not harmonize anything. Hence, the continued existence 
of different degrees of originality in different Member 
States could act as a barrier to trade in computer 
programs between Member States. 
No C 329/6 Official Journal of the European Communities 30. 12. 89 
3.3.3.2. The Committee recognizes that this problem 
of 'originality' is not unique to the law of copyright in 
computer programs and extends to many more aspects 
of copyright. However, it stresses that failure to address 
the problem in the first attempts to harmonize the law 
of copyright will only perpetuate a barrier to trade in 
the Community and simply delay a solution. 
3.3.3.3. The Committee believes that any clause 
defining 'originality' should incorporate the following: 
3.3.3.3.1. There should be no requirement that the 
program meets aesthetic, qualitative or quantitative 
criteria. 
3.3.3.3.2. There should be no requirement of level 
of programming expertise. 
3.3.3.3.3. The test for originality should be that to 
the extent the programe has not been copied from 
another program it should be protected. 
3.3.3.4. If, for any reason, it is decided not to have 
a definition of originality then paragraph 4(a) would 
be better drafted if it were expressed positively rather 
than negatively, and the following is suggested: 
'A computer program shall be protected if it satisfies 
the same conditions as regards its originality as 
apply to any other literary work.' 
3.4. Article 2—Authorship of program 
3.4.1. Article 2 : Paragraph 3 
3.4.1.1. It is questionable whether the draft complies 
with the 'moral rights' provisions of the Berne conven­
tion. Nevertheless, these provisions are more relevant 
to the more traditional forms of literary works copy­
right, not to computer programs. 
3.4.1.2. It is for this reason that the Committee sup­
ports this paragraph as drafted. The Committee believes 
that it is right that the first owner of the copyright in 
commissioned works should be the person who has 
ordered and paid for them. There is a difference 
between computer programs and any other sort of 
literary work. The concepts that have made Member 
States' legislatures reluctant to vest the copyright in 
commissioned works in the commissioner, rather than 
the commissionee apply to more traditional forms of 
literary work. Furthermore, invariably these matters 
are covered expressly in a contract between com­
missioner and commissionee, especially where the com­
missionee is concerned about the intellectual property 
rights in the program commissioned. 3.4.2. Article 2: Paragraph 4 
The Committee supports the principle of this para­
graph, but, for the sake of clarity, proposes that it be 
reworded as follows: 
'Where a computer program is created in the course 
of employment and it is part of the employee's job 
to create the program, the employer shall be entitled 
to exercise all rights in respect of the program 
unless otherwise provided by contract or by legally 
enforceable collective bargaining agreement.' 
3.4.3. Article 2: Paragraph 5 
The Committee believes that it is important to protect 
the rights of the owner of the copyright in the program 
which generates the subsequent program. For that 
reason, the Committee suggests the following changes 
of wording: 
Add after 'contract': 
'This Article does not affect the copyright in the 
computer program which generates the subsequent 
programs.' 
3.5. Article 4—Restricted acts 
3.5.1. Article 4(a) 
'Viewing' a program is difficult to define technically, 
and should be replaced by 'displaying'. 
3.5.2. Article 4(b) 
In order to conform as closely as possibly to the Berne 
convention, the Committee proposes that 4(b) reads: 
'The adaptation, translation, modification and 
arrangement of a computer program and the repro­
duction of such adaptation, translation, modifi­
cation or arrangement'. 
Although the Commission has avoided including defi­
nitions in this Directive, the word 'adaptation' is open 
to various interpretations and a definition in the Direc­
tive may be necessary. 
3.5.3. Article 4(c) 
3.5.3.1. Although the media upon which a computer 
program is carried can be 'sold' it is inappropriate to 
use the word 'sale' of computer programs themselves. 
3.5.3.2. The Commission has not placed any geo­
graphical restriction on exhaustion rights (such as a 
restriction to the Community). Whatever the merits of 
30. 12. 89 Official Journal of the European Communities No C 329/7 
a geographical restriction the Committee considers this 
a matter of trade and not copyright legislation, i.e. 
Community copyright law would not be an appropriate 
vehicle to prohibit parallel importing from outside the 
Community. Consequently the Committee supports the 
objective of this clause which makes clear in terms of 
copyright law that the position of EC individuals and 
companies taking licences of programs from copyright 
proprietors outside the Community is protected. How­
ever, the whole question of parallel importing of com­
puter programs from outside the Community deserves 
further study by the Commission. which do not involve the signature of a written agree­
ment by both parties. There will be fewer such written 
agreements as technology develops. The Committee 
proposes that the reference to written agreement signed 
by the parties be deleted and replaced by the words 
'any valid licence agreement'; further the words 'acts 
enumerated in Article 4(a) and (b) above' should be 
replaced by the more limited 'reproduction by loading, 
displaying, running, transmission or storage'. Further, 
the present text does not address the question of wheth­
er parallel processing of such a program is permitted. 
Accordingly, the Committee recommends the addition 
of the following after '...the use of the program': 
3.5.3.3. The word 'marketing' is difficult to define 
accurately. The Committee proposes certain changes to 
the drafting of 4(c) to overcome this difficulty. 
3.5.4. Redraft of Article 4 
It is therefore proposed that Article 4 should read as 
follows: 
'Subject to the provisions of Article 5, the exclusive 
rights referred to in Article 1 shall include the right 
to do or to authorize: 
the reproduction of a computer program by any 
means and in any form, in part or in whole. 
Insofar as they necessitate a reproduction of the 
program in part or in whole, loading, displaying, 
running transmission or storage of the computer 
program shall be considered restricted acts; .on one processor by one user at any one time'. 
3.6.1.2. The Commission should also consider 
including the right to make backup copies of a program 
as one of the general rights of the user. 
The following text is suggested: 
'(a) The copyright in a computer program is not 
infringed by the making of a reproduction of 
the program, or of a computer program being 
an adaptation of that program, if: 
(i) the reproduction is made by, or on behalf 
of, the owner of the copy (the 'original 
copy') from which the reproduction is 
made; and 
b) the adaptation, translation, modification and 
arrangement of a computer program and the 
reproduction of such adaptation, translation, 
modification or arrangement of a computer pro­
gram; 
the distribution of copies of a computer program 
by means of licensing, sale, lease, rental and the 
importation for these purposes. The right to 
control the distribution of a copy of a program 
shall be exhausted in respect of the sale or 
importation of that copy following the first sale 
of that copy to any person by the rightholder or 
with his consent.' 
(Plus a possible clause defining 'adaptation') (ii) the reproduction is made for the purpose 
only of ensuring that another copy of the 
program may be used by the owner of the 
original copy if one copy of the program 
is lost, destroyed or rendered unusable. 
(b) Sub-clause (a) above does not apply if: 
(i) there is a clear statement in writing upon 
the original copy or upon any media or 
packaging in or with which it is supplied 
that the right to make backup copies is 
excluded or if the media upon which the 
original copy is supplied are not such as 
would in normal use be lost, destroyed or 
rendered unusable, or 
(ii) there is a legally valid agreement to the 
contrary'. 
3.6. Article 5—Exceptions to the restricted acts 
3.6.1. Article 5: Paragraph 1 
3.6.1.1. The paragraph needs more precise drafting. 
There are many ways of licensing computer programs 3.6.2. Article 5: Paragraph 2 
The Committee proposes that, for the sake of clarity, 
the paragraph should read: 
No C 329/8 Official Journal of the European Communities 30. 12. 89 
'Where a copy of a computer program has been 
sold or made available to the public by means other 
than a valid licence agreement, the exclusive right 
of the rightholder to authorize rental shall not be 
exercised to prevent the use as reference material of 
that copy of the program by the public on the 
premises of non-profit making organizations which 
make available programs as reference material for 
the public, such as public libraries.' 
3.7. Article 6—Secondary infringement 
The Commission should examine the translation in 
various languages of the word 'infringement' to make 
sure that no criminal sanctions are necessarily implied. 
3.8. Article 7 - Term of protection 
3.8.1. The Article lays down a term which differs 
from the term of protection prescribed in the Berne 
convention because, as the Commission states in its 
explanatory memorandum, 'attaching the term of pro­
tection to the life of a human author might cause some 
hesitations in the light of joint authorship of computer-
generated works and the length of term which will 
result'. As the life of a computer program is invariably 
far shorter than 50 years, this concern of the Com­
mission's is academic and should not be allowed to 
weigh against the need to adhere to the provisions of 
Berne as closely as possible. The same argument applies 
to any suggestion of any other period of years, e.g. 25 
or 30. The Committee must emphasize the advantage of 
adhering closely to the Berne convention. Consequently, 
the Article should in the Committee's view read as 
follows: 
'The term of protection under this Article shall be 
the life of the author (or, if there is more than one 
author, the life of the last author to die) plus fifty 
years. The term of protection for a computer gener­
ated work shall be fifty years from the date upon 
which it was generated.' 
The Convention permits 'at least 50 years'. Neverthe­
less, to use such wording would invite Member States 
to impose different terms of protection, i.e. further 
barriers to trade. In any event use of 50 years clearly 
complies with the Berne convention. 
3.8.2. If the Commission is also concerned that the 
wording of the Berne convention may be changed at 
some time in the future so that the term will be fifty 
years 'from the date of creation', then the Committee 
still maintains its view that Berne as it is now drafted should be complied with (so far as possible) until it 
is altered, at which point the Commission could put 
forward a proposal to alter the wording of the Directive. 
However, agreeing to this position now does not mean 
a commitment to maintain the principles behind this 
clause at meetings to revise the Berne convention. 
3.8.3. Although the number of programs to which 
this would apply is minimal, the Committee considers 
that in order to comply as closely as possible with the 
Berne convention (and particularly Article 7(3) thereof) 
the following should be inserted (the existing clause 7 
becoming clause 7.1.): 
'2. In the case of anonymous or pseudonymous 
works, the terms of protection shall expire fifty 
years after copies of the program have been lawfully 
made available to the public. However, when the 
pseudonym adopted by the author leaves no doubt 
as to his identity, 7.1. above applies. If the author 
of an anonymous or pseudonymous work discloses 
his identity during the said fifty years, 7.1. shall also 
apply.' 
3.9. Article 8—Continued application of other legal 
provisions 
The Committee considers that the drafting would be 
clearer if 
a) to be consistent with the Directive on the protection 
of semi-conductor topography—the phrase: 'inso­
far ... Directive' were deleted; or 
b) Article 8.1 were replaced by: 
'Legal protection for computer programs provided 
in addition to the law of copyright is not affected 
by this Directive.' 
3.10. Article 9—Final provisions 
The latest date to be filled in this Article should of 
course be 1 January 1993 and the Committee hopes 
that the Council can set an earlier date. 
In any event the Committee would emphasize the 
importance of a Council decision on this Directive as 
soon as, possible so that the Member States have a clear 
and common position for negotiations to revise the 
Berne convention. 
30. 12. 89 Official Journal of the European Communities No C 329/9 
4. Further comments 
4.1. While welcoming this proposal from the Com­
mission, the Committee believes that there are other 
issues in the Green Paper on copyright that also require 
legislative proposals and looks forward to receiving 
these proposals, so that a clear position is established 
by 1 January 1993 of the Community's position on the 
whole law of copyright. 
4.2. The Committee believes the effect of this legis­
lation in terms of both the impact on the computer and 
software industry and on the development of infor­
mation technology should be regularly assessed by the 
Commission, particularly when any changes in Com­
munity legislation is envisaged as a result of changes 
Done at Brussels, 18 October 1989. in the Berne convention, and the Commission should 
consider giving a regular report on the effect of this 
legislation to the Council, the European Parliament and 
the Economic and Social Committee. 
4.3. It is clear that there is a serious problem across 
the Community of unauthorized access to computer 
programs and data ('hacking'). There is also the prob­
lem of 'viruses', that is to say, the unlawful insertion 
of matter into computer programs which impairs their 
function. Of course, these are not issues of copyright 
as such but they are issues which affect the use of 
computer technology and have implications for the 
regulation of the single market. The Committee rec­
ommends that the Commission give these issues serious 
examination with a view to making legislative pro­
posals. 
The Chairman 
of the Economic and Social Committee 
Alberto MASPRONE