COMMISSION OF THE EUROPEAN COMMUNITIES 
COM (90) 584 final 
Brussels, 17 January 1991 
FOLLOW-UP TO THE GREEN PAPER 
Working programme of the Commission 
n the field of copyright and neighbouring rights 
(Communication from the Commission) 
INTRODUCTION 
This paper sets out to define a general policy programme 
outlining the steps the Commission will be taking in respect of 
copyright and neighbouring rights^1) following publication of 
the Green Paper on Copyright and the Challenge of Technology 
(C0M(88) 172 final, June 1988) and the reactions it elicited. 
This action programme covers the period up to 31 December 1992, 
the date by which the internal market is to be established. 
The 1988 Green Paper was a consultative document intended to 
provide a basis for wide-ranging discussion particularly among 
those directly involved both in the Community and 
internationally. It represented neither a definitive statement 
of the Commission's position nor an exhaustive study of the 
probI ems at i ssue. 
Before embarking on a programme of specific measures to 
harmonize legislation in the field, the Commission felt It 
would be advisable to seek the opinion of all those concerned 
so as to be able to make a proper assessment of the interests 
affected, that is to say the interests of authors, artists, the 
cultural industries, and consumers, and to identify the areas 
to which priority should be given. 
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Chapters 2 to 7 of the present document follow the order of the 
corresponding chapters of the Green Paper. 
(1) In this paper the term "neighbouring rights" refers to 
the rights of performers, producers of phonograms and 
broadcasting organizations guaranteed by the Rome 
Convention of 26 October 1961. 
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CHAPTER 1 : COPYRIGHT, NEIGHBOURING RIGHTS AND THE EUROPEAN 
COMMUNITY - THE NEED FOR A GLOBAL APPROACH 
1.1. The emergence of new technologies In the last ten years 
has aroused fresh Interest in the subject of copyright 
and neighbouring rights. 
The new technologies have brought three main developments 
with t hem : 
(i) the increasing role played by copyright and 
neighbouring rights in the economy, particularly 
In the western countries, with their growing 
orientation towards goods and services with a 
high value-added content; 
(ii) the internationalization of questions of 
copyright and neighbouring rights, as the new 
technologies have removed or at least blurred the 
frontiers between countries so that difficulties 
can no longer be contained within a single state 
and dealt with at a purely domestic level; 
(III) profound changes in the use made of goods and 
services with links with copyright, neighbouring 
rights and the cultural sector in general. 
These aspects are closely bound up together. The new 
uses of copyright and neighbouring rights which have been 
made possible by technological advances are In many cases 
practiced on an international scale. The approach taken 
consequently has to operate in a multilateral and 
Community context to take account of this new dimension. 
1.2. The new technologies represent both an opportunity and 
challenge: an opportunity, because of the scope they open 
up for individuals to improve their quality of life and 
businesses their effectiveness, by providing access to 
literary and artistic works and to information and data, 
frequently on a real-time basis-, and a challenge, because 
of the scope for large-scale and uncontrolled copying of 
works, with no proper return to the holders of the rights 
i nvo I ved. 
1.3. In the face of these developments, and given the imminent 
establishment of the 1993 single market, the Community 
has a duty to act. 
Copyright provides a basis for Intellectual creation. To 
protect copyright is to ensure that creativity Is 
sustained and developed, in the interest of authors, the 
cultural industries, consumers, and ultimately of society 
as a whole. Neighbouring rights underpin these 
objectives in various ways, particularly by guaranteeing 
a proper return to performing artists and those who 
invest in the provision of these cultural goods and 
servi ces. 
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1.4. The Commission will be guided by two principles here: 
firstly, the protection of copyright and neighbouring 
rights must be strengthened ; secondly, the approach taken 
must as far as possible be a comprehensIve one. 
1.5. The changes which technological advance has brought make 
it urgently necessary to strengthen the protection of 
copyright and neighbouring rights, if an important 
economic and cultural asset in the Member States is not 
to be lost. 
The rights existing under the International conventions 
must be adapted to the changed technology, in ways which 
improve the protection given to authors, and new rights 
must be conferred on authors to prevent their creative 
efforts and their Investments from being unlawfully 
appropriated by others. 
1.6. The author's exclusive right to exploit his work or to 
authorize others to do so is the fundamental economic 
element in copyright. Holders of neighbouring rights 
have similar entitlements in respect of certain u s e s . ( 1 ) 
The holder of an exclusive right may exercise it himself, 
and thus himself determine the extent of dissemination of 
his work and the financial terms for its exploitation. 
But when an international system of copyright was set up 
it was immediately clear that certain rights, notably the 
right of public performance of musical works, would be 
difficult to exercise on an individual basis. As 
technology progressed the areas in which individual 
exercise was difficult or impractical expanded. in 
recent times the technological developments which have 
permitted new forms of use on an international scale, and 
no longer at a purely domestic level, have added a new 
dimension to the question of Individual or collective 
rights management. The problem is rendered all the more 
important by the prospect of the adaptation of existing 
rights and the conferring of new rights on authors. 
The completion of the internal market requires that 
authors and other right holders will find a level of 
protection at least comparable if they wish to exploit 
their rights in other Member States. Thus the 
conferring of a right and the practical management of 
that right are more and more closely bound up together. 
(1) For other uses holders of neighbouring rights hâve a 
claim to remuneration. 
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Under these circumstances, the Commission has also to 
consider the question of the management of copyright and 
neighbouring rights In the light of the completion of the 
Internal market in 1993. The Commission has the 
Intention of carrying out in the near future a study on 
the question of collective management in order better to 
i dent l fy the i ssues. 
1.7. The Commission proposes to take a comprehensive approach 
to the problems of copyright and neighbouring rights. 
The approach would be "comprehensive" in three ways. 
Within the Community, first of all, the Commission must 
not confine itself to a few salient points but must try 
to tackle all the main aspects which might have 
implications for the creation of the single market in 
cultural goods and services. Indeed In its communication 
Books and Reading: a Cultural Challenge for E u_rop>e (2 ^ 
the Commission emphasized that alongside the matters 
looked at in the Green Paper there were other questions 
of copyright which needed to be considered at Community 
level. Similarly, in its communication on audiovisual 
policy^3), the Commission emphasised the need for action 
on copyright in the field of broadcasting. 
Next, a response to the challenges of new technology 
which is limited to the Member States of the Community 
will deal with only part of the problem. If protection 
is inadequate outside the borders of the Community 
creative work produced in the Community can be 
plagiarized in non-member countries, and productive 
activity displaced to countries in which the level of 
protection of intellectual property is lower. As we move 
towards an intensification of world trade the Community 
would find itself having to deal with growing imports of 
work produced in breach of copyright In those countries. 
Neither can we underestimate the fact that the rule of 
national treatment laid down in the international 
copyright conventions means that any improved protection 
available in the Member States of the Community has to be 
granted to natural or legal persons from non-member 
countries, even though in those countries natural or 
legal persons from the Community may receive a lower 
level of protection. The existing imbalances would be 
aggravated. 
(2) C0M(89) 258 final, 3 August 1989. 
(3) C0M(90) 78 final, 21 February 1990. 
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1 .8 The same thing holds for neighbouring rights, with one 
qualification. Under the Rome Convention national 
treatment is granted only to the nationals of other 
contracting states which are party to the Convention. 
The Commission and the Community have accordingly been 
making an active contribution to the work on 
trade-related aspects of intellectual property rights 
("TRIPs") !n the framework of the GATT Uruguay Round, In 
order to arrive at a minimum level of substantive and 
effective protection at world levei. While taking 
account of the legitimate Interests of the developing 
countries and of the need to secure as broad a consensus 
as possible, the Commission feels that the level of 
protection provided should be high. it feels that 
medium term this would profit 
and developing. I count r ies n t hf1 
deve ! oped 
1.9. The Commission would also like to repeat its full backing 
for the sustained efforts undertaken by the World 
Intellectual Property Organization (WIPO) to ensure 
adequate protection of copyright and neighbouring rights. 
The Commission supports the initiatives worked out, and 
particularly the preparation of standard provisions 
intended to serve as a model for national copyright 
legislation in the countries party to the Berne 
Convention and the setting up of a committee of experts 
to consider whether a protocol to the Berne Convention 
should be drawn up and if so what Its content should be. 
1.10. Finally it is necessary to have a basic level of 
harmonisation common to all Member States upon which it 
is possible to build more easily as means of a 
complementary harmonisation of these rights in specific 
areas . 
1.11. Proposed Community action 
1.11.1. The Commission feels that to parallel and complement 
the steps taken in the multilateral framework the 
protection of copyright and neighbouring rights should 
be consolidated inside the Community. This is why it 
intends to take its first initiative in the form of a 
joint approach. 
1.11.2. As well as, and without prejudice to the other measures 
referred to in this paper, it is vital that alt the 
Member States of the Community should accede to the 
multilateral conventions administered by WIPO - alone 
or In conjunction with other International 
organizations - In the field of copyright and 
neighbouring rights. 
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1.11.3 
1.11.4 This would supply a common foundation in all the 
Member States, on the basis of which specific aspects 
could be harmonized in the Community, and steps taken 
in the multilateral framework, In order to Improve the 
level of protection. Such a common foundation would 
facilitate the practical exercise of the powers 
conferred by the Treaty of Rome, which already permit 
Community action on certain specific aspects of 
copyright and neighbouring rights. 
As things stand at present the majority of 
Member States are already party to the Berne Convention 
on the protection of literary and artistic works, as 
revised by the Paris Act of 1971, and to the 1961 
Rome Convention on the protection of performers, 
producers of phonograms and broadcasting organizations. 
In most of the Member States which have not yet acceded 
to these Conventions legislation allowing ratification 
or accession to the Rome Convention has already been 
passed or is currently before the national Parliaments. 
1.11.5. In order to eliminate the distortions which exist and 
to clear the way for the large single market, 
therefore, the Commission is presenting to the Council 
a proposal for a decision which would require all 
Member States to have acceded to and comply with the 
provisions of the Berne Convention, as revised by the 
Paris Act, and to the Rome Convention, by 
31 December 1992, the date on which the internal market 
i s to be compIeted. 
1.11.6. Such an initiation, which seeks to lay down a minimum 
level of protection, does not mean that on more 
specific matters the Commission will not purpose a more 
complete harmonisation. 
1.11.7. This proposal forms the subject of a separate document 
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CHAPTER 2 PIRACY 
2 . 1 Conclusions of the Green Paper 
2.1.1. In Chapter 2 of Its Green Paper on Copyright and the 
Challenge of Technology the Commission concluded that 
the repression of piracy of sound and audiovisual 
recordings in the Community requires the existence of 
clear substantive legal provisions in favour of 
authors, producers, performers and broadcasting 
organizations in respect of their right to authorize 
the reproduction for commercial purposes of their 
recordings and broadcasts. 
2.1.2. In the view of the Commission, such substantive legal 
protection must be accompanied by appropriate 
procedures facilitating legal action and proof against 
acts of piracy, in particular provisions on search and 
seizure. Furthermore, efficient remedies must be at the 
disposal of right holders in Infringement cases and 
deterrent criminal sanctions must be available. There 
must be an organized framework permitting an effective 
cooperation between right holders and public 
authorities, in particular, law enforcement 
authorities. Specific measures, such as the control of 
commercial tape duplication equipment, should be 
adopted where appropriate. 
2.1.3. To achieve these goals, the Commission indicated i 
intention to submit to the Council as a matter of 
priority a proposal for a binding legal instrument ts 
requiring all Member States to provide, through one 
legal technique or another, for rights for producers of 
cinematographic works, videograms and sound recordings 
to authorize the reproduction for commercial purposes 
of those works and their commercial distribution; 
requiring all Member States to provide rights for per­
forming artists to authorize the reproduction for 
commercial purposes of their fixed performances and 
their commercial distribution; 
- requiring all Member States to provide rights for 
organizations engaged in broadcasting to authorize the 
fixation and reproduction for commercial purposes of 
their broadcasts, as 
distribution of such 
introduction of simi 
transmitted by cable 
operators ; well as the commercial 
fixed broadcasts, and the 
ar rights In respect of signals 
In favour of cable television 
8 -
requiring the Introduction In all Member States of 
regimes making the possession of digital audio tape 
commercial duplicating equipment dependent upon a 
licence to be delivered by a public authority and the 
maintenance of a register or registers in respect of 
licensed equipment. 
2.1.4. In addition, the Commission indicated an Intention to 
submit to the Council in due course a proposal for a 
reguI at i on : 
- extending Council Regulation (EEC) no. 3842/86 laying 
down measures to prohibit the release for free circula­
tion of counterfeit goods to cover equally goods under 
copyr ight; 
- extending the mutual assistance regime to include first 
counterfeit and then copyright infringements. 
2.1.5 Furthermore, the Commission stated the desirability of: 
recommending to Member States the provision of rights 
for authors, producers of phonograms and videograms and 
performers to request public prosecution in respect of 
acts of pi racy ; 
recommending to Member States the introduction of mini­
mum requirements as regards search and seizure proce­
dures in cases of suspected piracy of copyright goods-, 
recommending to Member States the introduction of mini­
mum requirements as to criminal sanctions and civil 
remed i es ; 
creating at the appropriate Community or international 
level a register or registers, financed by right 
holders, of rights in sound recordings, video 
recordings and feature films, possibly linked to the 
CD. project^1); 
setting up an agreement at the International level on 
the seizure of counterfeit goods, applicable not only 
to counterfeit of trade marks but also to intellectual 
property rights including copyright and related rights. 
(1) CD project : A computerised data storage system 
containing information on a range of materials protected 
by Intellectual property rights. 
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2 . 2 Hear i ng 
The conclusions suggested by the Commission for the 
harmonization of certain neighbouring rights (see 2.1.3. 
above) were also dealt with In the hearing the Commission 
held for interested circles on 18 and 19 September 1989 
i n BrusseI s. 
There was general support for the Commission to submit a 
proposal on those items mentioned above (under 2.1.3) 
which would in effect harmonize the protection for 
performing artists, producers of phonograms and 
videograms and broadcasting organizations on the line of 
the Rome Convention of 1961. 
Furthermore, participants unanimously held that the 
of protection for all neighbouring right holders 
protected by the Rome Convention of 1961 should be 
harmonized and fixed to 50 years from production, 
performance or publication for all rIghtho Iders . term 
2.3. Proposed Community action 
2.3.1. A proposal for a directive on the harmonization of 
certain neighbouring rights has been prepared. This 
proposal is intended to follow the suggestions in the 
Green Paper to fight piracy (above 2.1.3). Based on 
these suggestions, on the results of the hearing and 
the written and oral comments received, the proposal 
includes the following elements : 
- Introduction of exclusive rights of reproduction and 
distribution for performing artists, phonogram 
producers, videogram producers and broadcasting 
organ i zat i ons ; 
- Introduction of an exclusive right of fixation for 
performing artists and broadcasting organizations. 
2.3.2. Thus, the proposal would follow the line of the Rome 
Convention of 1961, to which a majority of Member 
States have adhered, and go beyond it In some respects. 
This proposal on the harmonization of neighbouring 
rights may be linked, for practical purposes, to the 
proposal for a directive on rent a I/I end Ing right. 
2.3.3. On duration of these rights, the Commission accepts the 
suggestion that their duration shall be 50 years after 
the fixation or the performance was made or took place 
or was published. For practical purposes this point 
will be Included in a separate proposal which will deal 
with the problem of duration in general. 
3) 
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2.3.4. In addition, most of the other items mentioned In 
Chapter 2 of the Green Paper (above 2.1.4 and 5) are at 
present dealt with on a multilateral basis In the con­
text of the Uruguay Round of the GATT (TRIPs) which Is 
intended to improve the protection and enforcement of 
trade related Intellectual property rights. 
2.3.5. The proposal concerning the reinforcement of neighbour­
ing rights is presented in a separate document (see 
point 2.3.2.). 
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CHAPTER 3 : HOME COPYING OF SOUND AND AUDIOVISUAL RECORDINGS 
3. 1 I nt roductI on 
3.1.1 The question of home copying of audio-visual recordings, 
which was discussed in Chapter 3 of the Green Paper, 
evoked considerable Interest In relevant circles. The 
problem Is a particularly Important and complex one. 
Home recording of sound and audio-visual works by private 
individuals for personal and non-commercial use, whether 
from other recordings or from broadcasts, has become a 
widespread practice both In the European Community and 
elsewhere. It can be expected to grow even further, as 
a result particularly of technological progress. 
3.1.2 To take account of the new situation, copyright 
legislation in a number of countries, both within and 
outside the Community, has been amended to ensure the 
protection of right holders and to Introduce a right to 
remuneration. The Commission also raised the question 
in the Green Paper. On that basis it engaged in a 
wide-ranging process of consultation with all Interested 
parties. 
3.1.3 On the basis of what was said in the Green Paper and In 
the course of the subsequent consultation, the Commission 
considers that measures must be taken to deal with the 
problem at the Community level. 
3 . 2 Conclusions of the Green Paper 
3.2.1 After thoroughly studying the legal, practical and 
technical aspects of the problem the Commission sought 
the views of interested parties. 
3.2.2 As regards digital audio recordings the Commission asked 
for comments on the following propositions: 
(a) digital audio tape (DAT) recorders should be 
required to conform to technical specifications 
which prevent their use for unlimited acts of audio 
reproductI on ; 
(b) the manufacture, Importation or sale of machines 
which do not conform to the specifications should be 
prohibited; 
(c) the measures outlined In (a) and (b) should apply to 
all DAT machines for recording audio; 
(d) the manufacture, importation or sale of devices 
intended to circumvent or render inoperable the 
measures outlined In (a) and (b) should be 
prohibited; 
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(e) possession of machines Intended for professional or 
specialist use and not conforming to the 
specifications for home use outlined in (a) should 
be made dependent upon a licence to be delivered by 
a public authority and the maintenance of a register 
or registers in respect of licensed equipment. 
3.2.3 The Commission also asked for views on the question 
whether It was acceptable that systems of remuneration 
for private copying should remain In those Member States 
which have introduced them, and could be introduced If 
Member States so wish in those countries which have not 
yet introduced them, no Community action being required 
for their introduction or harmonization. 
3 . 3 Hearing and submissions 
3.3.1 Since the Green Paper was pub 
have been expressed, and some 
result of developments in the ished a great many opinions 
positions have shifted as a 
field. 
3.3.2 The general comment was put forward that It was unwise to 
focus attention exclusively on digital recording, since 
analogue recording would continue to be the major form 
for years to come. 
It was also said that there was no need to differentiate 
between the copying of audiovisual works and of works in 
sound only because from the point of view of copyright 
all reproduction is treated in the same way. Also, the 
progressive integration of technical means of 
reproduction tens to render such a distinction 
increasingly meaning less. Finally, a large majority 
opposed any prohibition on home copying. 
3.3.3 On the question of systems of remuneration for home 
copying the opinions expressed differed. Right 
holders - authors, performers and the producers of 
phonograms and videograms - all insisted that this system 
must be generalIzed In alI the Member States In order to 
safeguard their rights. Other groups, including 
consumers and the manufacturers of magnetic tape, were 
opposed to any system of levies. 
3.3.4 Finally, as regards technical protection systems, there 
was a broad consensus in favour of a system to regulate 
DAT recording, which was supported by right holders, 
equipment and carrier manufacturers, and consumers. 
This system, the Serial Copy Management System (SCMS), 
permits copies to be made from the original work but not 
from other copies. The holders of rights In protected 
works would accept this system only if a right of 
remuneration was also ensured. 
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3.4 Proposed Community action 
3.4.1 Given the need to complete the Internal market the 
Commission intends initially to take two measures 
regarding the private copying of sound and audio-visual 
works . 
3.4.2 Firstly, the Commission intends to lay before the Council 
a proposal for a directive on home copying. 
3.4.3 Secondly, the Commission Is favourably disposed to the 
general use of the SCMS system for digital audio tape 
(DAT) recording equipment. New technology Is to be 
encouraged, but not where it would damage the Interests 
of right holders and consumers. 
The SCMS system satisfies these requirements, by allowing 
copies to be made while at the same time limiting the 
practice; the user thus has the full benefit of 
technological progress. It also allows right holders to 
keep at least partial control of the exploitation of 
their works by preventing the making of the unlimited 
series of copies permitted by DAT technology. There will 
also have to be consideration of the scope for extending 
such a system or an equivalent system to other forms of 
digital reproduction. 
3.4.4 The Commission 
proposa I fora intends to include the drafting of a 
directive in its work programme for 1991 
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CHAPTER 4 : DISTRIBUTION RIGHT, EXHAUSTION AND RENTAL RIGHT 
4.1. Conclusions of the Green Paper 
4.1.1. Upon review of the legal situation in the Member States 
and evaluation of the economic background, the Green 
paper on Copyright and the Challenge of Technology in 
chapter 4 concluded that there is a need to harmonize a 
rental right for certain areas of copyright and for 
certain recording media. 
4.1.2. Thus, the Commission in the Green Paper (4.11.1.) 
suggested the introduction in all Member states of a 
right for the author, the performer and the phonogram 
producer to authorize the commercial rental of sound 
recordings. This suggestion Is mainly based on the 
consideration that the increasing penetration of 
compact discs, which do not deteriorate upon repeated 
use, entails the risk that the author, the performer 
and the phonogram producer may suffer economic damage 
by the unauthorized commercial rental of sound 
record i ngs . 
4.1.3. Furthermore, the Commission (Green Paper 4.11.2.) 
suggested the introduction or generalization In all 
Member States of a right for the producers of cinemato­
graphic works to authorize the commercial rental of 
their videograms. In the view of the Commission the 
economic interests of such producers of videograms make 
It necessary to guarantee them the right to choose the 
time and place to exploit their works by performance in 
movie theatres and by commercial rental. 
4.1.4. However, the Commission In the Green Paper (4.11.3.) 
saw no obvious need for the introduction of a general 
right for authors to control other elements in the 
commercial distribution of their works or to harmonize 
exhaustion provisions. Neither did the Commission 
consider It necessary at that time to extend the scope 
of a rental right to non-commercial lending. 
4.1.5. The harmonization of a right for the commercial rental 
of sound and audiovisual recordings was intended to be 
Initiated by a proposal for a directive, to be 
submitted to the Council by the Commission based on 
Article 100A EEC (Green Paper 4.12.1.). 
4.2. Hear l ng 
4.2.1. The conclusions of the above mentioned proposals In 
Chapter 4 of the Green Paper were discussed at a 
hearing which the Commission held for interested 
circles on 18 and 19 September 1989 in Brussels. 
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4.2.2. Most participants in this hearing agreed to the need 
for a harmonization of rental rights. An overwhelming 
majority held that a harmonization should concern both 
rental right and non-commercial lending right and thus 
should go beyond the suggestions made In the Green 
Paper. There was unanimity that not only sound 
recordings and videograms should be covered by such a 
rentaI/I ending right, but also all categories of works 
under Article 2 of the Berne Convention. In the view of 
many participants the determination of the 
beneficiaries of a renta I /I ending right should not be 
decided at the Community level but should be left to 
the legislation of Member States. 
4.2.3. Most participants were in favour of an exclusive r 
(to authorize or prohibit) for commercial rental, 
lending right, most participants considered that a 
right to remuneration would suffice, which could 
preferably be exercised by collecting societies or 
other similar bod les. ght 
For 
4.3. Proposed Community action 
4.3.1. A proposa I 
rental and for a directive on the harmonization of 
lending right has been prepared. 
4.3.2. On the basis of the Green Paper, the results of the 
hearing and the numerous written and oral comments 
submitted to the Commission on these Issues, the 
proposal is intended to include the following elements 
- An exclusive right (to authorize or prohibit) the 
commercial rental of protected copyright works, 
phonograms and videograms. 
The beneficiaries of such a rental right will 
authors, performing artists and producers. be the 
An exclusive lending right, which may be subject to 
derogations, on the part of Member States, for cultural 
or other reasons. 
The duration of the rent a I/I end Ing right will follow 
the minimum term of the Berne Convention (at least 50 
years after the death of the author) and Rome 
Convention (at least 20 years) until such time that a 
Community harmonization of the duration of these rights 
has t aken effect . 
4.3.3. This proposal Is the subject of a separate document. 
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CHAPTER 5 : THE LEGAL PROTECTION OF COMPUTER PROGRAMS 
5.1. Conclusions of the Green Paper 
5.1.1. Chapter 5 of the Green paper proposed the submission of 
a proposal for a Council Directive on the legal 
protection of computer programs, and indicated the 
possible contents of such a directive In broad terms 
(5.7.1 ) 
5.1.2. In October 1988 the Commission held a hearing of 
interested circles to discuss the conclusions set out 
in the Green Paper. Participants from major 
organizations representing producers and users of 
computer programs were invited to contribute oral and 
written statements. 
5.2. Hear I ng 
5.2.1. The hearing of October 1988 confirmed the support of 
industry for the broad terms of paragraph 5.8.2 (i.e.. 
the contents of any Directive which might be proposed) 
of the Green Paper with the following reservations: 
Point c) It was generally felt that access protocols 
and interfaces should not be treated 
differently from other parts of programs. 
Point d) It was generally felt that the normal 
restricted acts provided for by the Berne 
Convention should apply, and that these should 
be listed as separate acts. 
Point j) There was no support for this point. 
5.2.2. The conclusions of the hearing were: 
a) a directive should be prepared without further 
de I ay ; 
b) it should be based on copyright: neighbouring right 
or sul generis protection were rejected; 
c) it should correspond to the majority view expressed 
in the hearing, and depart as little as possible 
from the legislation already enacted in the Member 
States . 
5.3. Proposed Commmunlt y Act I on. 
5.3.1. The text of a proposed directive was adopted by the 
Commission In December 1988 and published in the 
Official JournaI. 
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5.3.2. The opinion of the Economic and Social Committee was 
received In October 1989. It was generally favourable 
to the Commission' proposal. 
5.3.3. Considerable controversy was generated In Industry 
circles by the proposed directive on two specific 
points: the scope of protection (whether protection 
covered interfaces or not) and reverse engineering (the 
changing of the object code form is which the program 
is supplied to the source code form in which It was 
first written in order to study aspects of the program 
design). The controversy on these issues delayed the 
Parliamentary opinion by several months. 
5.3.4. The opinion of the Parliament was delivered in July 
1990. 
5.3.5. The Commission amended its proposal on 17 October 
1990<1) by Incorporating those amendments of the 
European Parliament which it considered to be 
acceptabIe. 
5.3.6. A common position of the Council 
end of 1990. i s expected by the 
(1) C0M(90) 509 final SYN 183 
*) 
- 18 -
CHAPTER 6 : DATABASES 
6.1. Conclusions of the Green Paper 
6.1.1. The Commission solicited views as to whether databases 
should be protected by copyright or a sul generis 
system, and whether protection should be granted by 
virtue of the selection and arrangement of the 
comp i I at i on. 
6.1.2. The conclusions of this chapter of the Green Paper were 
left relatively open ended, with no firm indication 
being given of specific action by the Commission in 
view of the rapid development of this new sector. 
Comments received on Chapter 6 indicated a strong 
desire in many quarters to see measures Introduced 
within the Community to clarify and harmonize 
protection of databases, where such protection exists 
at present, and to Introduce protection explicitly In 
those Member States where existing legislation Is 
unclear or deficient as regards databases. 
6.2. Hear Ing 
6.2.1. A hearing of interested circles was held on April 26/27 
1990. The hearing confirmed that there was overwhelming 
support from right holders for protection of databases 
by means of copyright. No support was expressed for a 
'sul generis' approach. 
6.2.2. The conclusions of this hearing were as follows: 
(1) As regards the first question on the questionnaire, a 
large majority spoke against making any distinction 
between "database" and "data bank". Both terms are used 
equally at present. However, there is a growing tendency 
to use the general term "database". 
(2) As regards a definition of "database", several 
participants proposed a broad definition which includes 
the following elements 
a) collection, organization and storage of data; 
b) information in a digital form in which it can be 
processed by means of a computer. 
In the course of the discussion it became clear that the 
fact that the information is stored digitally means that 
the definition of "database" can include all media, e.g. 
text, Image, sound, whether protected as such by 
copyr I ght or not . 
(3) All speakers indicated that databases are in their view 
protected by copyright. This view was shared by the 
representative of WIPO. 
- 19 
(4) Copyright should apply to databases without prejudice to 
the application of other forms of legal protection such 
as patents, unfair competition, criminal law, contract, 
etc . 
(5) As to the applicability of an alternative form of 
protection instead of copyright (neighbouring right or 
sui generis right) a large majority of participants 
rejected this approach. 
(6) As to the categorization of databases, speakers did not 
indicate a desire to limit this to "compilations" given 
that some databases are "literary works" in their own 
r ight . 
(7) As far as the protection of personal data is concerned, 
this problem was considered to be outside the scope of 
the hear i ng. 
(8) As to the distinction which could be made between real 
time and static databases, the majority of speakers 
believed no distinction should be made. Copyright could 
apply to and resolve legal problems arising in respect of 
all databases regardless of the technique used to create 
t hem . 
(9) Regarding the ownership of rights in the database Itself, 
all participants felt that the author, in the sense of 
the person creating the database, should be the first 
r i ghthoIder. 
(10) As regards databases created by Joint authors or under a 
contract of employment, In the absence of contractual 
provisions to the contrary, the Berne Convention would 
provide the appropriate legal framework. 
(11) The question of the inclusion in a database of protected 
works was raised. A large majority believed that normal 
copyright rules should apply. All participants agreed 
that indexing (inclusion of bibliographical information) 
of protected works without authorization of the 
rightholder should not be an Infringement of copyright. 
The same rule could apply to abstracts of protected works 
provided that they did not substitute for the original 
protected works themselves. Normal copyright rules 
should apply in this instance. 
(12) As regards the term of protection, Article 7 of the Berne 
Convention was referred to on a number of occasions. The 
term of protection should be compatible with the provi­
sions of the Berne Convention. The possibility of 
Increasing the term of protection to 70 years met with no 
particular resistance. Some participants however 
reserved their position on this issue. 
- 20 -
(13) As to the originality issue, most participants expressed 
a desire to see a criterion of originality compatible 
with the requirements of the Berne Convention and which 
would impose no special requirements on the authors of 
databases. 
(14) As regards the restricted acts, there was general 
agreement that classic copyright principles as laid down 
In the Berne Convention should apply. These restricted 
acts should cover : displaying, inputting, loading, 
transmission, storage, downloading. 
(15) The need to provide for the collective administration of 
rights in works input into databases was indicated by 
some partiel pants. 
(16) Several speakers advocated that no distinction should be 
drawn between databases on CD Rom and on-line databases. 
It was felt that the physical medium on which the 
database was stored was Irrelevant to this Issue. 
(17) It was said that the use of the same software to create 
different databases did not affect their protectab I I I ty : 
sufficient choices were available to make different 
databases using the same software. 
(18) As regards technical measures to protect databases, 
several speakers indicated that in their view 
rightholders should use all available means to control 
access to and use of their works. 
Proposed Community Action 
The above conclusions suggest that a uniform and stable 
legal environment for the creation of databases within 
the Community should be established without further 
delay, given the economic Importance of the sector and 
the risk of distortions arising within the Single 
Market. 
6.3.2. Given that there was general support for a directive 
harmonizing copyright protection for databases, it has 
therefore been announced that a proposal for a 
Directive to this end should be prepared for adoption 
as soon as possible. 
6.3.3. The Commission will Include this 
working program for 1991. ini tlatIve In its 
- 21 -
CHAPTER 7 : THE ROLE OF THE COMMUNITY IN MULTILATERAL AND 
BILATERAL EXTERNAL RELATIONS 
7.1. Conclusions of the Green Paper 
7.1.1. In Chapter 7 of its Green Paper on Copyright and the 
Challenge of Technology , the Commission dealt with the 
international aspects of copyright protection, 
including the negotiations currently taking place in 
the framework of the GATT. 
7.1.2. The Commission concluded that copyright also is placed 
in a muItI-faceted, plurilateral world. The success or 
failure of multilateral efforts, and the ongoing 
negotiations in the new GATT round In particular, 
cannot fail to have an effect on the Community's 
bilateral efforts. These, in turn, will affect and are 
affected by the use which interested parties may make 
of the autonomous new commercial policy Instrument. 
7.1.3. Rather than submitting specific proposals for initia­
tives, the Commission has In the Green Paper submitted 
for discussion the following matters : 
- the priorities to be given to the different aspects of 
reinforcement of intellectual property protection in 
the international context ; 
- the development by the GATT of new disciplines as 
regards the effective reinforcement of Intellectual 
property laws, in particular, copyright, as well as the 
adoption, as appropriate, of improved substantive 
standards ; 
- the more systematic use of bilateral relations, to 
ensure better protection In non-Member States of the 
Intellectual and Industrial property of Community right 
holders, particularly In the copyright field. 
7-2. Negotiations on "TRIPs" in the Uruguay Round of the GATT 
7.2.1. Numerous written and oral submissions to the Commission 
have encouraged the active role the Community, as 
represented by the Commission, plays In the 
negotiations on "TRIPs" (Trade related Intellectual 
Property Rights) in the ongoing Uruguay Round of the 
GATT. 
7.2.2. The mandate for the TRIPs-negotI at Ions Is included In 
the Ministerial Declaration of Punta del Este. It was 
further specified and clarified In the course of the 
Mid-term Review (MontreaI/Geneva) which struck a 
balance between the Items industrialized countries are 
seeking and points of importance for developing 
- 22 -
countries. According to this mandate, the negotiations 
aim at establishing a multilateral agreement on the 
improved protection of Intellectual property rights, 
governed by the GATT. 
7.2.3. The issues to be included in the TRIPs agreement are 
substantive standards (copyright, neighbouring rights, 
patents, trademarks, industrial design, 
chips/semiconductor layouts, trade secrets and 
geographical Indications); enforcement (Internal 
enforcement including provisional measures, border 
enforcement and the acquisition of IPR's) and bas I c 
principles (national treatment, MFN/non-dIscrI m InatI on, 
transparency, dispute settlement, relationship between 
organizations, developing countries, transitional 
per I ods) . 
7.2.4. On all of these three issues, the Community submitted 
in 1989 comprehensive and detailed written proposals 
(Doc. W26 on substantive standards, Doc. W31 on 
enforcement and Doc. W49 on basic principles). Among 
the other participants in the group, nearly all 
industrialized countries, but also some developing 
countries, have also submitted written proposals. The 
Community proposals have succeeded In forming the main 
basis for discussion. 
7.2.5. Finally, the Community was the first participant In the 
negotiating group to submit, in March 1990, its own 
complete legal draft of an agreement on "TRIPs" 
(Doc. W68). On this draft the Commission has received 
on the whole very positive reactions, Including from 
among developing countries. Thus the Community has 
become a leading force in its commitment to the highest 
possible level of intellectual property protection, 
particularly In the field of copyright and neighbouring 
rights. 
7.2.6. The Commission strongly believes that the agreement on 
TRIPs should become an integral part of the GATT. This 
would strengthen the role and function of the GATT. 
Furthermore, it is the declared interest of the 
Community to enable as many developing countries as 
possible to join such a TRIPs agreement, while not 
compromising on the level of protection. 
7.2.7. Ministerial meetings on the Uruguay Round have 
confirmed that adequate protection for Intellectual 
Property Rights Is an Issue of Increasing importance 
for international trade in the global economy. Some 
issues In the negotiations, such as the level of 
intellectual property protection, the relationship 
between GATT and WIPO and the balance between the In 
part diverging Interests of developing and 
Industrialized countries, were Identified as still 
pending reasonable definition. 
23 -
7.3 Work in WIPO 
7.3.1. The World Intellectual Property Organization (WIPO) has 
worked constantly to render the protection of 
intellectual property, including copyright and 
neighbouring rights, more effective throughout the 
world. WIPO administers the relevant International 
conventions, including the Berne and Rome Conventions, 
alone or in conjunction with other international 
organizations. The Commission has hitherto taken part 
in WIPO's work In these fields in an observer capacity. 
7.3.2. since the 1971 Paris revision of the Berne Convention 
there have been several fresh developments with 
implications for the creation, dissemination and use of 
literary and artistic works, mainly as a result of the 
appearance of new technology. A number of meetings 
held under WIPO's auspices have analysed 
copyright-related questions raised by these 
deve I opments. 
7.3.3 In the course of WIPO's 1982-83 and 1984-85 blennla 
meetings of governmental experts were held to discuss 
such new uses as home copying, hiring and lending, 
storage and recovery of data processing systems, cable 
television and satellite broadcasting. 
During the 1986-87 biennlum and the first part of 1988, 
guidelines with commentaries covering nine categories 
of literary and artistic works were discussed at 
meetings of governmental experts called jointly by WIPO 
and UNESCO. These guidelines and their commentaries 
were revised and supplemented In Geneva In June and 
July 1988 by a committee of governmental experts given 
the task of evaluating and drawing together the 
principles relating to the different categories of 
work . 
In accordance with the WIPO Programme for the 1988-89 
biennium a committee of governmental experts has 
examined the question of model provisions for 
legislation in the field of copyright, on the basis of 
documents drawn up by the International Bureau.^1^ 
(1) Document CD/MPC/I/2-I to III; document CE/MPC/M/2, 
Addendum to Chapter IX, "Obligations concerning 
Equipment used for Acts Covered by Protection", of 
document CE/MPC/l/2; and document CE/MPC/MI/2. 
- 24 -
These model provisions are intended to serve as 
examples for the drafting of aspects of national 
copyright legislation in the Berne Union countries 
which are Indispensable to the strict and proper 
interpretation of the Convention, and to provide 
satisfactory answers to traditional copyright questions 
and to the new questions linked to the development of 
techno Iogy. 
The committee completed its work at its third session 
in Geneva on 2 to 13 July 1990. In the light of the 
opinions received the model provisions are now to be 
drawn up and published by the International Bureau. 
7.3.4. The Programme for the 1990-91 blennium which the 
Governing Bodies of WIPO approved at their twentieth 
series of meetings*2^ includes Item PRG 02.7 entitled 
"setting of norms for the protection and enforcement of 
intellectual property rights," which calls for the 
foI I owIng i n I tI at Ives: 
"(a) in the field of norm setting by treat les 
(ill) preparations for 
the conclusion of a protocol to supplement the 
Berne Convention ("Protocol to the Berne 
Convent Ion"), 
the conclusion of a treaty on the settlement of 
disputes between States In the field of 
Intellectual propert ("Treaty on the Settlement 
of Intellectual Property Disputes between 
States"),< 3 > 
7.3.5. Under item PRG.03, "Exploration of intellectual 
property questions in possible need of norm setting," 
the Programme for the 1990-91 blennium refers to 
"Intellectual Property Disputes between Private 
Parties." 
(2) Document AB/XX/2, 31 May 1989. 
(3) "WIPO will Invite GATT to cooperate, If GATT so desires, 
with WIPO in this undertaking. The treaty would cover 
possible disputes arising in all fiels of intellectual 
property, particularly concerning any disputes that may 
arise In connection with the interpretation or 
application of the Paris Convention, the Berne 
Convention, other treaties or other International 
ob I I gat ions." 
Document AB/XX/2 already referred to, Annex A, page 17. 
- 25 -
The International Bureau Is to study the possibilities 
of establishing a mechanism to provide services for the 
resolution of disputes between private parties over 
intellectual property rights. Recourse to such a 
mechanism would be open to private parties (not 
governments) on a completely voluntary basis. 
The mechanism would situate the settlement of disputes 
in WIPO's specialized and clearly neutral environment, 
and, in most cases, would make the non-judicial 
procedures much faster and cheaper than today. 
7.3.6. These initiatives, which by no means account for the 
whole of WIPO's extensive activities in the field of 
copyright, are of particular interest to the Community. 
The Commission intends to take part, and to make its 
own contribution within the limits of Its powers. 
7.3.7. In the Green Paper (point 7.2.3.) the Commission 
concluded that "the further evolution of the 
Community's role within WIPO in general Is a matter of 
considerable importance given the likelihood of further 
Community legislation on copyright and related rights 
and, indeed, on other forms of intellectual property." 
7.3.8. Before 31 December 1992 the Commission will reconsider 
the need for a change in the status of the Community 
within WIPO In respect of copyright and neighbouring 
r i ghts . 
7.4. The Community and other European States and 
i nst i tut i ons 
The pursuit of effective and appropriate protection for 
intellectual property rights at the world level, which 
in the nature of things must seek a balance between the 
interests of the industrialized countries and those of 
the developing countries, must not be allowed to 
obscure the need for more extensive protection In 
Europe. Such an approach Is fully In line with the 
letter and spirit of the Berne Convention (Article 20) 
and the Rome Convention (Article 22), and with the 
cultural traditions of the European countries. 
Discussion must continue with the other European States 
and institutions, particularly those of the European 
Free Trade Association (EFTA), the countries of central 
and eastern Europe, and the Council of Europe. 
- 26 -
7.5. Negotiations on the European Economic Area 
7.5.1. With a view to the establishment of a European Economic 
Area the Council has given the Commission a brief to 
negotiate an agreement between the Community and EFTA 
and Liechtenstein. The agreement is to allow free 
movement of goods, services, capital and persons within 
the European Economic Area by 31 December 1992. The 
basis of the agreement would be the relevant acqu i s 
communauta i re, I.e. the general principles of the 
Community Treaties and secondary legislation as 
interpreted by the Court of Justice. The 
acquis communautaire would be integrated Into the 
agreement . 
7.5.2. Community secondary legislation in the Intellectual 
property field is so far very limited, but the Court of 
Justice has developed a number of principles regarding 
the implications for copyright and neighbouring rights 
of the free movement of goods and the freedom to 
provide services. These principles therefore form an 
integral part of the acquis communautaire. 
7.5.3. The various proposals In the field of copyright and 
neighbouring rights which the Commission Intends to 
submit to the Council and Parliament should also be 
considered to form part of the acquis communautaire as 
soon as they are adopted. 
This would emphasise once again the importance which 
the Commission attaches to the maintenance and 
reinforcement of a high level of protection for 
intellectual property rights, and more particularly 
copyright and neighbouring rights, not only in the 
Community but also in the wider context of the European 
EconomIc Area. 
7.6. 
7.6.1 The Community and the countries of central and eastern 
Europe 
In the trade and cooperation agreements concluded in 
1989 and 1990 between the Community and most of the 
countries of central and eastern Europe the question of 
intellectual, industrial and commercial property was 
given particular attention, particularly because of Its 
implications for direct Investment in those countries 
by Community businesses and for the transfer of 
techno Iogy. 
In the present state of Community law, Intellectual, 
industrial and commercial property rights are to a 
great extent within the jurisdiction of the Member 
States. Apart from the Directives on semiconductors 
and trade marks, the Council has not yet approved the 
proposals submitted by the Commission, on computer 
programs and biotechnology for example. 
- 27 -
7.6.2. Despite this there Is an article in the agreements 
concluded recently under which, within the limits of 
their respective powers, the Contracting Parties 
undertake to 
ensure adequate protection and enforcement of 
industrial, commercial and Intellectual property 
r i ghts, 
ensure that their international 
field of industrial, commercial 
property rights are honoured, comm i tments in the 
and Intel I ectua I 
encourage appropriate arrangements between 
undertakings and Institutions within the Community 
and the other party with a view to due protection of 
Industrial, commercial and intellectual property 
rights, 
encourage cooperation and exchanges of views between 
organizations and institutions responsible for 
industrial, commercial and intellectual property. 
It has also been agreed that Community right holders 
wi I I have access to the relevant courts and 
administrative bodies of the countries of central and 
eastern Europe . 
7.6.3. While aware of the limits to action on its part the 
Commission intends to make full use of the scope 
provided by these agreements to ensure effective and 
appropriate protection of the rights In question. 
In this spirit the Commission held an information 
conference on intellectual property with the countries 
of central and eastern Europe In Brussels on 
23 May 1990. Its aim was to Improve mutual awareness 
of the present situation and future developments In the 
Community and in those countries. Such contact should 
go on, In a bilateral or multilateral framework. 
7.6.4. The trade and cooperation agreements are the first 
towards closer relations between the Community and 
countries of central and eastern Europe. The 
protection of Intellectual property, and more 
especially copyright and neighbouring rights, have 
far played only a limited role In this connection. step 
the 
so 
28 -
At the European Council meeting in Dublin on 28 
April 1990 the Commission envisaged the conclusion of 
association agreements with certain countries of 
central and eastern Europe under Article 238 of the 
EEC Treaty. These agreements will represent a major 
qualitative advance on the first step. They will 
establish a lasting and structured relationship with 
associate countries and will substantially shape 
tomorrow's Europe. They will include chapters on the 
following subjects: political dialogue, free trade and 
free movement, economic cooperation, financial 
cooperation, cultural cooperation and institutional 
aspec ts. 
7.6.5. Questions regarding the protection of copyright and 
neighbouring rights are to be seen against this more 
general background. 
A commun i cat «on 
August 1990<4>, 
September 1990. 
favour abIe and, 
CommIss i on made from the Commission was submitted in 
to the Counci I and was discussed on 17 
The outcome of the discussion was 
on the basis of the comunication , the 
explanatory contacts with Poland, 
Hungary and Czechoslovakia, The Commission informed 
the Council about these contacts and submitted 
proposals for negotiation guidelines with the countries 
in question. These were discussed in the Council in 4 
December 1990. 
7.6.6. Regarding intellectual property rights, the proposals 
for negotiating guidelines envisage that measures 
guaranteeing effective and adequate protection of 
intellectual, industrial and commercial property, at a 
comparable level to that which exists In the Community, 
will be taken by Poland, Hungary and Czechoslovakia. 
These countries would have undertake to Join to those 
multilateral agreements in this field to which they are 
not yet party. 
(4) Communication from the Commission "Association 
agreements with the countries of Central and Eastern 
Europe : a general outline ", C0M(90)398 fin, 27 August 
1990. 
- 29 -
7.7 The Counc of Europe 
7.7.1. In line with the exchange of letters between the 
Council of Europe and the European Community concerning 
the consolidation and intensification of cooperation, 
of 16 June 1987(5) the Commission Intends to continue 
working together with the Council of Europe on matters 
of common concern In the copyright field, as it said in 
t he Green Paper . <6) 
7.7.2. The Council of Europe has already adopted 
recommendations in this field, such as those on 
and audiovisua| private copying, piracy, and 
reprography (7) sound 
Work is going on on a legal Instrument dealing with 
questions of copyright in broadcasting, either in the 
form of a separate instrument to the the European 
Convention on Transfrontier Television, which was 
opened for signature on 5 May 1989, or an additional 
protocol to the Convention. A final decision on this 
could be taken around the beginning of 1991. 
7.7.3. The Council of Europe and the Commission are already 
working together. The Commission would repeat its 
desire to pursue this process, in the interests of both 
sides, In order to consolidate the protection of 
copyright and neighbouring rights at European level. 
7.8. The role of the Community In bilateral relations 
7.8.1. The Green Paper pointed out that the existing 
International conventions had not yet achieved the 
objective of providing effective copyright protection 
on a large enough International scale. In addition to 
the work In the multilateral context, therefore, 
problems existing with regard to individual countries 
or groups of countries need to be tackled bilaterally. 
(5) OJ No L 273, 26 September 1987, pages 35 to 39. 
(6) Green Paper on Copyright, page 225. 
(7) Recommendation No R(881)1 of the Committee of Ministers 
to Member States on Sound and 
Copying and Recommendation No 
Ministers to Member States on 
in the field of Copyright and 
adopted on 18 January 1988. 
Recommendation No R(90)11 of the Committee of Ministers 
to Member States on Principles relating to Copyright Law 
Questions In the field of Reprography, adopted in 
Apr I I 1990. AudIovI sua I Private 
R(88)2 of the Committee of 
Measures to combat Piracy 
Neighbouring Rights, 
30 -
7.8.2. Community Industry encounters difficulties of three 
kinds In non-member countries: 
- the absence of adequate substantive standards 
protecting intellectual property, 
- the lack of effective enforcement where such standards 
ex i st , 
- failure to accord national treatment to Community right 
holders. 
7.8.3. It will be clear that an agreement on the aspects of 
intellectual property rights affecting trade, which the 
Commission hopes can be concluded In the GATT framework 
(see point 7.2) and to which all the Community trading 
partners could agree, would place bilateral relations 
between the Community and non-member countries on an 
entirely new footing, and would make an Important If 
gradual contribution to alleviating the current 
difficulties. 
7.8.4 In or 
r e I a t 
mu I I t 
the n 
do no 
need 
r egar 
prope 
i nf or 
poss i 
actio 
su i t a 
neigh der 
i ons 
I ate 
egot 
t pr 
I nfo 
d i ng 
r t y 
mat i 
b I e 
n ta 
b I e 
bour to prepa 
fol Iow i 
ra I trad 
I at i ons 
oduce th 
rmatI on 
all asp 
In non-m 
on must 
assessme 
ken by t 
forms of 
i ng r i gh re f o 
ng th 
e neg 
in th 
e des 
on t h 
ec t s 
ember 
be so 
nt of 
he Co 
act i 
t s as r an 1 n 
e concl 
ot lat lo 
e field 
i red ou 
e I egaI 
of the 
count r 
und I f 
pr lor I 
mmunIt y 
on, In 
eIsewh tens 
us I o 
ns , 
of 
t com 
and 
prot 
i es . 
I t I 
t I es 
, an 
the 
ere . I f lea 
n of 
and p 
Inte I 
e , th 
pr ac 
ect I o 
The 
s to 
. to 
d to 
field t I on of 
the GAT 
ar t I cuI 
Iectua I 
e Comm i 
t 1 ca I s 
n of In 
Comm I s 
make th 
concent 
select 
of cop b1 Iatera 
ar I y if 
proper t 
ss i on w i 
Ituat ion 
tel I ectu 
s I on's 
e best 
rate the 
t he most 
yr i ght a nd 
7.8.5. The Commission accordingly proposes to draw up an 
inventory covering the situation with regard to 
intellectual property in the majority of non-member 
countries and the difficulties encountered by Community 
industry there. This would Include a summary of 
legislation and regulations in force regarding 
copyright, neighbouring rights, designs and models, 
patents, trade marks, appelât ions of origin, etc. 
7.8.6. Such an exercise will be of little use If It Is not 
supplemented by an assessment of the factual situation 
In the relevant countries, since in some cases the 
legal position and the practical position are quite 
different. There will therefore have to be a study of 
the real difficulties encountered by Community 
Industry. The Commission is In the process of 
consulting Community business, through UNICE, regarding 
the difficulties encountered in the field of 
Intellectual property In all non-member countries. 
- 31 -
7.8.7. The replies received will supplement the information 
already in the Commission's possession. Existing 
studies by international organizations will also be 
used . 
7.8.8. The Inventory will be published In 1991; it will of 
course have to be updated regularly. In time, 
therefore, it will allow a complete picture of the 
changing situation to be built up, and will put the 
Community In a strong position to defend its interests 
- 32 -
CHAPTER 8 : OTHER COMMUNITY INITIATIVES IN THE FIELD OF 
COPYRIGHT AND NEIGHBOURING RIGHTS 
8.1. I nt roductlon 
In this Chapter the Commission outlines some areas for 
action in respect of copyright and neighbouring rights 
which were not discussed in the Green Paper. This Is 
without prejudice to the other initiatives referred to 
in the communication Books and Reading^1) or the 
communication on aud i o-vI sua I poI i cy . * 2) 
This is not an exhaustive account, and It may be that 
matters not referred to here will have to be tackled if 
the development of technology or legislation and 
national practice should make it advisable to take 
measures at Community level. 
8.2. The duration of protection 
The international conventions on copyright and 
neighbouring rights lay down minimum periods of 
protection; the states which are party to these 
conventions are free to apply longer periods. Some 
Member States have made use of this possibility, to 
different extents. 
The result is that at present the duration of 
protection varies within the Community, in some cases 
according to the nature of the work. The disparities 
can create obstacles to the free movement of cultural 
goods and services and lead to distortion of 
competition, since the same work may at the same time 
be protected in one Member State and have fallen Into 
the public domain in another. 
8.2.2. In the Patricia case(3) the Court of Justice had to 
rule on the Interpretation of Articles 30 and 36 of the 
EEC Treaty with regard to different periods of 
protection in force in two Member States. Legislation 
In one Member State allowed a manufacturer of sound 
recordings to invoke exclusive rights which It held 
over the reproduction and sale of certain musical works 
in order to prohibit the sale In that country of 
recordings Incorporating some of those works which had 
(1) C0M(89) 258 final, 3 August 1989. 
(2) COM(90) 78 final, 21 February 1990. 
(3) Case 341/87 EMI Electrola v Patricia and Others; 
Judgment delivered on 24 January 1989, not yet reported. 
- 33 -
been Imported from another Member State where they had 
been lawfully marketed, without the consent of the 
right holder or his licensee, a period of protection 
previously enjoyed by the manufacturer there having 
s i nee expired. 
8.2.3. The Court found that in the 
law, which was characterized 
or approximation of laws rel 
literary and artistic proper 
legislatures to determine th 
such protection. In so far 
national iaws might lead to 
intra-Commun 1 ty trade in sou 
restrictions were justified 
Treaty as long as they were 
between the rules concerning 
and this was inseparably lln 
exclusive rights. present state of Community 
by a lack of harmonization 
atlng to the protection of 
ty, it was for the national 
e conditions and rules for 
as disparities between 
rest r i et i ons on 
nd recordings, those 
under Article 36 of the 
due to the disparity 
the period of protection 
ked to th-e existence of the 
8.2.4. This state of affairs is clearly not in keeping with 
the spirit and the reality of a Community area without 
Internal frontiers In which the free movement of 
cultural goods and services is ensured in the same way 
as it is within a domestic market. The Commission 
therefore has a duty to take steps towards the 
harmonization of the duration of copyright and 
neighbouring right protection. 
8.2.5. The Commission intends to draw up a proposal for a 
directive on this subject; It will be guided by four 
main principles: 
(a) The harmonization achieved should be total, that 
Is to say that It should lay down fixed periods 
of protection, beginning and ending at the same 
time In all Member States of the Community, for 
each type of work and for each neighbouring right 
covered. 
(b) The duration laid down should provide a high 
level of protection for authors and other holders 
of neighbouring rights. This will mean that the 
periods of protection will be longer than the 
minimum period laid down in the International 
convent Ions. 
(c) The harmonization of periods of protection must 
not in any way prejudice rights acquired under 
existing national legislation. Transitional 
measures will be proposed In order to avoid any 
reduction In periods of protection already 
running which may be longer than those laid down 
under the directive. 
- 34 -
8.2.6 
8.3. 
8.3.1 (d) Lastly, the Commission's proposal will seek to 
preserve the delicate balance between copyright 
and neighbouring rights, while at the same time 
avoiding excessive complexity. 
The Comm i ssI on 
proposa I for a will Include the presentation of such 
directive in Its 1991 work programme. 
Authors' moral rights 
Copyright Includes entitlements of an economic nature 
and entitlements of a moral nature. Economic rights 
are bound up with the author's right to benefit from 
the economic use of his work. Moral rights spring from 
the fact that the work is a reflection of the 
personality of the author. This approach is in fact 
enshrined in the Universal Declaration of Human Rights, 
and specifically Article 27(2).<4> 
8.3.2. Article 6bis of the Berne Convention on the protection 
of literary and artistic works lays down minimum rules 
on the scope and duration of moral rights, while 
leaving it to legislation in the country where 
protection is claimed to define the means of redress 
available to the author and other holders after his 
deat h . 
8.3.3 
8.3.4 As a result of different legal approaches and 
traditions, there are differences between the Member 
States of the Community, as well as between the States 
party to the Berne Convention, with regard for example 
to the extent and duration of moral rights. 
In recent years cases have come before the courts of 
some countries In which moral rights, and more 
especially the right of the author to object to any 
distortion, mutilation or other modification of his 
work which would be prejudicial to his honour or 
reputation, were invoked against the way in which 
cinematographic works were being treated (the 
coI ourizatI on of black and white films, commercial 
breaks in films broadcast on television, etc). Thus 
moral right entitlements can generate restrictions on 
the use of works already made public. 
The Commission has not so far decided to propose any 
general harmonization of moral rights in the Member 
(4) "Everyone has the right to the protection of the mora 
and material Interests resulting from any scientific, 
literary or artistic production of which he Is the 
author." 
- 35 -
States. However, the Commission does not rule out the 
possibility that It might have to take action In 
respect of one or other defined area of moral rights if 
that should prove advisable In connection with any of 
the measures referred to In this communication. The 
duration of moral rights, for example, might have to be 
harmon i zed. 
8.3.5. The Commission proposes to make a more thorough study 
of all problems raised by the differences existing 
between Member States' legislation on moral rights, 
beginning in 1991. It will then decide what 
initiatives may be called for on the question of moral 
rights in the Community. 
8.4. Reprography 
8.4.1. Reprography of printed works, that is to say their 
reproduction by photocopying or by similar mechanical 
reproduction processes, has grown considerably in the 
last few years. This is due primarily to Improvements 
in the machines used. These have become smaller while 
nevertheless giving a better quality product more 
rapidly and at a lower cost. The appearance on the 
market of colour photocopying machines has opened up 
new scope for the reproduction of protected works, as 
has the possibility of combining reprography with the 
recovery of works stored on computer. 
8.4.2. Article 9(1) of the Berne Convention allows authors of 
literary and artistic works the exclusive right of 
"authorizing the reproduction of these works, in any 
manner or form." It is generally accepted that 
reprography is a form of reproduction covered by this 
exclusive right. 
Limitations on this right are provided for in 
paragraph 2 of the same article, under which It Is to 
be a matter "for legislation in the countries of the 
Union to permit the reproduction of such works In 
certain special cases, provided that such reproduction 
does not conflict with the normal exploitation of the 
work and does not unreasonably prejudice the legitimate 
interests of the author." 
36 -
8.4.3. In the light of this article and of the report of the 
Stockholm diplomatic ccnference,(5) It must therefore 
be asked whether technological developments in 
reprography do not conflict with the normal 
exploitation of the work and do not unreasonably 
prejudice the legitimate Interests of the author. 
8.4.4. In 1990 the Commission undertook a study of the 
problems raised by reprography and of possible 
solutions, as it had promised to do in Its 
communication Books and Read I ng. 
8.4.5. After it has consulted interested parties the 
Commission envisages taking a Community initiative in 
this area in 1991. 
8.5. Resa le rights 
8.5.1. In accordance with Article 14ter of the Berne 
Convention for the protection of literary and artistic 
works, the laws of certain Member States give authors a 
resale right, which is an inalienable right enjoyed by 
the author, or after his death the persons or 
institutions authorized by the national legislation, to 
an interest in any sale of original works of art and 
original manuscripts of writers and composers 
subsequent to the first transfer by the author of the 
wor k . 
8.5.2. This article of the Berne Convention is an optional 
provision, and by way of exception from the general 
principle of national treatment its application may 
made subject to a reciprocity condition. be 
8.5.3. The Commission proposes to examine this aspect, before 
31 December 1992, looking particularly at the practice 
in the States which do confer a resale right, and the 
arguments for and against the Introduction of such a 
right. The Commission will then take a decision on 
the advisability of a Community Initiative on this 
ques t i on. 
(5) The revision of the Berne Convention which was drawn up 
in Stockholm on 14 July 1967 has not entered into force 
as far as the substantive provisions are concerned. The 
same provisions were however taken over without change 
in the Paris Act of 24 July 1971, which Is the most 
recent version of the Convention and to which most of 
the states of the Berne Union are party. 
- 37 -
CHAPTER 9 BROADCASTING AND COPYRIGHT 
9.1. On the subject of broadcasting and copyright, in its 
communication on audiovisual policy, the Commission 
annouced its intention to propose a directive on the 
harmonisation of copyright rules applicable to satellite 
broadcasting and cable retransmission. In order to 
facilitate the consultation of interested parties, the 
Commission has prepared a discussion paper on the 
problems raised by copyright in the field of satellite 
broadcasting and cable retransmission. The measures 
envisaged for satellite broadcasting are based on three 
principles. 
9.2. Any satellite broadcast originating in a Community Member 
State, must be regarded as an act of broadcasting for 
copyright purposes, regardless of the technology used, 
once it constitutes communication to the public. As far 
as copyright is concerned, therefore there is no longer 
any point in making a distinction between direct 
broadcasting satellites and other satellites. 
9.3. The right to broadcast protected works by satellite has 
to be acquired only in the country of establishment of 
the broadcaster. For the purpose of acquiring the 
rights, the parties may take into consideration the 
actual or potential audience within the footprint of the 
sa te I I i te . 
9.4. An adequate level of protection for authors' rights and 
of the neighbouring rights of performers, producers of 
phonograms and broadcasters has to be secured by a 
minimum level of harmonisation of Member States' laws on 
the subject. In this respect, the possibility of a legal 
licence for satellite broadcasts must be ruled out. 
Thus, the interests of right holders will be safeguarded 
no matter in which Member State the broadcaster may be 
establ ished. 
9.5. The Commission's proposals in respect of simultaneous, 
unaltered and unabridged cable retransmission of 
broadcasts can be summed up in four principles. 
9.6. The cable retransmission of a programme coming from 
another Member State is a form of exploitation subject to 
copyright. It follows that the cable operator must 
obtain authorisation from the owners of all rights in any 
part of the programme. 
9.7. These author 
means . satlons must be obtained by contractual 
- 38 -
9.8. 
9 .9 It should be possible for such rights to be managed on an 
exclusively collective basis to the extent that this is 
made necessary by the specific features of cable 
retransmission. There should be a Community measure to 
ensure that the smooth operation of collective agreements 
Is not brought to a halt by the opposition of the owners 
of Individual rights in sections of the programme to be 
ret ransm i t ted. 
On the other hand, negotiations between cable operators 
and right holders, these being represented by collecting 
societies, should be made eased by supplementary measures 
such as a voluntary conciliation mechanism and a 
mechanism designed to prevent abuse of negotiating 
posIt1ons . 
9.10. The d i scuss i on 
been ava i I ab I e paper forms a separate document which has 
since the end of November 1990. 
- 39 -
ANNEX 
ACTIONS PROPOSED IN THE FIELD OF COPYRIGHT AND NEIGHBOURING 
RIGHTS 
I. Legislative action to be taken by 31 December 1991 
(i) Proposal for a decision that the Member States 
will, by 31 December 1992, ratify or adhere to 
and comply with the 1971 Paris Act of the Berne 
Convention and the Rome Convention of 26 October 
1961 . 
(ii) Proposal for a directive on rental right, lending 
and certain neighbouring rights. 
(iii) Proposal for a directive on home copying of sound 
and audiovisual recordings. 
(iv) Proposal for a directive on the harmonisation of 
the legal protection of databases. 
(v) Proposal for a directive on the harmonisation of 
the term of protection for copyright and certain 
neighbouring rights. 
(vi) Proposal for a directive on the coordination of 
certain rules concerning copyright and 
neighbouring rights applicable to satellite and 
cable broadcasting. 
I I . Studies to be carried out by 31 December 1992 at the 
latest ,. 
( i) Mora I r ights , 
( i i) Reprogr aphy , 
(iii) Resale right, 
(iv) Collective management of copyright and 
neighbouring rights and collecting societies.. 
I I Other actions planned by 31 December 1992 
(i) Consolidation of the role of the Community in the 
field of bilateral and multilateral external 
re I at I ons; 
(II) Establishment of an inventory of the intellectual 
property situation in certain non-member 
count rI es. 


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