No C 91/4 Official Journal of the European Communities 12. 4. 89 
II 
(Preparatory Acts) 
COMMISSION 
Proposal for a Council Directive on the legal protection of computer programs 
COM(88) 816 final — SYN 183 
(Submitted by the Commission on 5 January 1989) 
(89/C 91/05) 
Explanatory memorandum 
CONTENTS 
PART ONE: GENERAL Page 
1. Introduction 5 
2. The need for action 5 
I. The nature of the intellectual property 5 
II. Existing protection measures 6 
III. Harmonization of protection measures 6 
3. The type of intellectual property protection retained 6 
I. Patents 6 
II. Contract 6 
III. Copyright 7 
4. Relation to international conventions 8 
5. The legal basis 8 
PART TWO: PARTICULAR PROVISIONS 
Object of protection 9 
Authorship of program 9 
Beneficiaries of protection 10 
Restricted acts 10 
Exceptions to the restricted acts 11 
Secondary infringement 12 
Term of protection 12 
12. 4. 89 Official Journal of the European Communities No C 91/5 
PART ONE: GENERAL 
1. Introduction 
1.1. For the purposes of this proposal, the term 'computer 
program' is used. This means a set of instructions the purpose of 
which is to cause an information processing device, a computer, 
to perform its functions. The program, together with the 
supporting and preparatory design material which have made 
possible the creation of the program, can also be called 
'computer software'. All such material is intended to be covered 
by the provisions of this proposal in so far as it can be demon­
strated that, from the material in question, a form of program 
has been or could be created. However, it is not thought 
advisable to include a definition in the Directive to avoid it 
becoming outdated. Where the material is of a nature such that 
it could not lead to the creation of a program, for example, a 
user manual accompanying a program, although the material 
will not be protected as part of the computer program, 
protection by copyright or other means may nevertheless apply. 
1.2. Computer technology now plays a significant role in 
almost every aspect of the social and economic life of the 
Community, in fields as diverse as leisure, medicine, banking, 
education, transport, commerce and industry. It follows that the 
programs which are devised to cause the computer to perform 
its functions occupy a place of growing importance alongside 
the other more traditional expressions of the human intellect, 
such as works of literature, art or music, or industrial designs 
and inventions. The size and growth of the computer industry is 
such that it's importance in the economy of the Community 
cannot be over-emphasized. 
1.3. It is essential to create a legal environment which will 
afford a degree of protection against unauthorized reproduction 
to the computer program which is at least comparable to that 
given to works such as books, films, music recordings or 
industrial designs, if research and investment in computer tech­
nology are to continue at a sufficient level to allow the 
Community to keep pace with other industrialized countries. In 
particular, as regards small and medium sized enterprises it is 
important that their ability to create and market innovative 
software is not significantly reduced by unauthorized repro­
ductions of their products. Protection must therefore be streng­
thened and made uniform throughout the Community as much 
in the interests of the specialized small and medium sized 
software firms which can contribute so much to the future 
success of the European software industry as in the interests of 
the existing major producers. 
Without such a legal environment, the intellectual effort and 
financial resources employed to devise computer programs are 
put at risk by the ease with which the program can be 
reproduced, imitated or counterfeited. If the level of protection 
given to computer programs in Member States should fall below 
that accorded to programs created in other countries it is 
evident that the work of European innovators in this fast 
moving and highly competitive field will be easily appropriated 
by predatory activities from outside the Community. 1.4. An adequate level of protection should therefore be 
unequivocally enshrined in the laws of all Member States and 
any difference which could affect the functioning of the 
common market should be eliminated. Common principles are 
not only necessary in order to promote the free circulation of 
computer software within the Community without any 
restrictions due to diverging intellectual property rules, but also 
to create conditions in which industry can take advantage of the 
single market. The current absence of such clear and congruent 
legislative provisions in Member States concerning the rights 
of authors of computer programs has thus prompted the 
Commission to make this proposal to the Council. 
2. The need for action 
2.1. In establishing the need for action to harmonize 
computer program protection, the Commission has had regard 
for three factors: the nature of the intellectual property to be 
protected, the protection measures existing at present in 
Member States and the need to harmonize those protection 
measures throughout the Community. 
I. THE NATURE OF THE INTELLECTUAL PROPERTY 
2.2. As far as the property right is concerned, a computer 
program, in common with other works protected by intellectual 
property legislation, is the result of a creative intellectual human 
activity. While its mode of expression or fixation may still be 
unfamiliar to many, the degree of creativity, skill and inven­
tiveness required to devise a program make it no less deserving 
of protection than other works protected by copyright. The fact 
that computer programs have a utilitarian function does not 
change this. 
2.3. These elements of creativity, skill and inventiveness 
manifest themselves in the way in which the program is 
elaborated. The tasks to be performed by a computer program 
need to be defined and an analysis of the possible ways to 
achieve these results must be carried out. A selection has to be 
made of the various solutions and the steps to achieve the end 
result must be listed. The way in which these steps are expressed 
gives the program its particular characteristics of speed, ef­
ficiency and even style. A program has a structure, with sections 
and subsections, through which information flows. In common 
with other literary works, the computer program also has an 
underlying logic in the presentation of the various steps. 
2.4. These steps, the algorithms, from which the program is 
built up, should not be protected as such against unauthorized 
reproduction. They are the equivalent of the words by which 
the poet or the novelist creates his work of literature, or the 
brush strokes of the artist or the musical scales of the composer. 
2.5. As with literary works in general, protection can only be 
envisaged for a computer program from the point at which the 
selection and compilation of these elements indicate the crea­
tivity and skill of the author, and set his work apart from that of 
other authors. 
No C 91/6 Official Journal of the European Communities 12. 4. 89 
2.6. It is evident that the more simple and limited the 
functions which the program requires the computer to perform, 
the more simple the program will be. Similarities between 
programs are thus inevitable where the tasks are similar and the 
solutions limited in number. The steps by which the computer 
will arrive at the completion of its task will also be similar, even 
identical from one program to another^ where the task, the 
solution and the steps required to achieve it are extremely 
simple. 
Provided that copying does not take place, a program maker 
might, in theory, even produce an entire program which bears a 
very great similarity to existing programs, where the tasks to be 
performed are identical and the degree of complexity of oper­
ations is very low. 
2.7. In practice, computer programs are rarely of such 
simplicity that authors will arrive at totally identical programs, 
independently of each other. On the other hand many 
sub-routines which programmers habitually use in order to build 
up programs are in themselves commonplace in the industry and 
the originality of the program may lie in the selection and 
compilation of these otherwise commonplace elements. 
2.8. The success of the program in terms of its ability to 
perform the task for which it is required will to a large extent be 
conditioned by these choices made by the author of the 
program at every step along the way. This success will manifest 
itself in a program which is quicker, easier, more reliable, more 
comprehensive, more productive to use than its predecessors or 
its competitors. 
II. EXISTING PROTECTION MEASURES 
2.9. The following countries have explicitly recognized the 
protection of computer programs by copyright: Australia, 
Brazil, Chile, Dominican Republic, France, Federal Republic of 
Germany, Hungary, India, Indonesia, Japan, Malaysia, Mexico, 
Philippines, Republic of Korea, Singapore, Spain, Trinidad and 
Tobago, Turkey, United Kingdom, United States of America. 
Draft laws are also under consideration in a number of 
countries to the same effect, including Denmark, Italy and the 
Netherlands. 
2.10. The analysis of the existing copyright legislation in the 
Member States already reveals one major difference: the term of 
protection ranges from 25 years from creation to 70 years after 
the death of the author. Further divergences appear if the inter­
pretation of the law by courts is taken into account. It is true 
that so far courts have had only a limited number of oppor­
tunities to judge cases involving the protection of computer 
programs, but as regards one basic condition for protection, the 
originality criterion, diverging interpretations exist between 
Member States, which result in a difference in the range of 
computer programs which can be considered protected by 
copyright. There is similar uncertainty as to the scope of 
protection afforded to computer programs by copyright 
protection. 
III. HARMONIZATION OF PROTECTION MEASURES 
2.11. Such differences in legislation can only be allowed to 
remain if they do not affect the functioning of the internal 
market. Intellectual property rights, which are by their very nature territorial rights merit special attention to ensure that 
they do not result in new barriers or perpetuate existing barriers 
to intra-Community trade. Divergencies and uncertainty 
concerning the scope of protection and the different duration of 
exclusive rights may not only affect the free circulation of 
computer programs in the Community but may also influence 
the decision to establish new firms or commercial initiatives and 
thus create a distortion of competition. 
2.12. The aim of the present proposed Community action is 
therefore to establish legal protection in those Member States 
where it does not yet clearly exist and to ensure that the 
protection in all Member States is based on common principles. 
These principles can be summarized as follows: 
— computer programs are protected as literary works by 
exclusive rights under copyright, 
— the person in whom the right arises is defined, 
— the acts which require authorization of the right holder and 
the acts which do not constitute an infringement are 
determined, 
— the term and the conditions for protection of the program 
are defined. 
3. The type of intellectual property protection retained 
3.1. Although it has been clearly established that there is a 
need for legal protection in this field and that divergences in 
legislation in Member States could bring about a situation in 
which the functioning of the internal market is adversely 
affected, the question has been raised as to whether copyright is 
the most appropriate mode of protection to choose. A number 
of forms of legal protection exist and have been applied already 
in practice to protect computer programs. 
I. PATENTS 
3.2. As regards patent protection, this possibility seems to be 
limited in all Member States to those programs which form part 
of a patentable invention having a technical character and which 
meet the normal criteria for patentability. But even for the 
limited group of computer programs which may satisfy most of 
these conditions the requirement of an inventive step will lead, 
in the case of a large majority of valuable computer programs, 
to the conclusion that the conditions for patent protection are 
not fulfilled. The inventive step may often pertain to the algor­
ithms underlying the programs, which have normally to be 
considered unpatentable, like any mathematical formulae, 
principle or natural law. Therefore, patent protection can play a 
limited role in the legal protection of computer programs, but 
does not provide an adequate solution for the basic legal 
protection of such works. 
II. CONTRACT 
3.3. As regards contract law, this is a valuable form of 
protection in so far as individual contractual relations exist and 
respect of the contract clauses can be controlled. Much of the 
12. 4. 89 Official Journal of the European Communities No C 91/7 
software put on the market today is subject to licence 
agreements between right holder and user. Indeed, this is the 
normal mode of commercialization for all but the most simple, 
mass-produced software, such as games or standard business 
packages. Such licence agreements allow right holders to 
circumscribe the activities of users in respect of all the acts 
connected with the use of the program. The user is free to 
accept or reject the limitations on his activities which the 
licensing contract proposes. However, in some areas, the 
balance of power between producers and users of computer 
programs may not permit the latter to negotiate equitable 
contract conditions, due to the market strength of some 
software suppliers. Therefore, it seems necessary to provide for 
basic principles of protection which apply regardless of specific 
contractual provisions. Nevertheless, individually negotiated 
arrangements should be possible as long as they are not in 
conflict with the applicable competition law. 
3.4. Contract law alone does not provide efficient protection 
against most forms of misappropriation. In particular, as regards 
mass-marketed programs for personal computers and computer 
games which do not need maintenance, contract law does not 
provide an adequate means to prevent the copying and use of 
computer programs by third persons. Nor is it entirely clear 
whether the practice of so-called 'shrink-wrap licensing' where 
use conditions are attached to a product which is, to all intents 
and purposes 'sold' to the user, constitutes a valid licence in all 
circumstances and in all jurisdictions. 
3.5. It is therefore proposed that the granting and limitation 
of exclusive rights in computer programs should reflect these 
different modes of commercial exploitation, outright sale, and 
licensing. Where 'sale', in the normal sense of the word occurs, 
certain rights to use the program must be taken to pass to the 
purchaser along with the physical copy of the program. Where 
licensing takes place in the conventional sense by means of a 
written contract signed by both parties, the rights to use the 
program which has been provided will, with a limited number of 
exceptions, remain circumscribed by contractual arrangements. 
The choice remains open for the supplier then to decide on the 
most appropriate form of commercialization for his product, 
and for the user to manifest his preference for an outright 
purchase or a licensing agreement. 
III. COPYRIGHT 
3.6. The overwheiming weight of evidence submitted to the 
Commission during the consultation process which followed 
publication of the Green Paper indicated that protection by 
copyright is the most appropriate measure to adopt. Given the 
trend towards copyright as the best available means to ensure 
the international protection of programs not only among 
Member States but among the major trading partners of the 
Community, it is hardly surprising that so many commentators 
on the Green Paper have indicated that harmonization of 
copyright laws within the Community is now becoming a 
priority. It is further believed that within the framework of 
copyright, protection as a literary work is desirable. Copyright can provide the solution of ensuring adequate protection against 
misappropriation and, in particular, against unauthorized repro­
duction. Copyright has already in the past proved its capacity to 
adapt to new technologies, such as films and broadcasts. 
Copyright protection does not grant monopolies hindering inde­
pendent development. Copyright protects only the expression 
but not the underlying idea of a work. It does not therefore 
block technical progress or deprive persons who independently 
developed a computer program from enjoying the benefits of 
their labour and investment. 
3.7. Protection by copyright allows a clear balance to be 
achieved between too little protection and over-protection. It 
provides sufficient flexibility to permit a fair compromise 
between the divergent interests of producers or suppliers on one 
side and users of computer programs on the other. But the main 
advantages of this type of intellectual property protection relate 
to the fact that the protection covers only the individual 
expression of the work and gives thus sufficient flexibility to 
permit other authors to create similar or even identical 
programs provided that they abstain from copying. This is 
particularly important because the number of algorithms 
available, on which computer programs are based, is 
considerable, but not unlimited. 
3.8. Some countries have introduced 'genre specific' 
provisions in their copyright law to accommodate possible 
differences between computer programs and other more tradi­
tional literary works. Such 'genre specific' provisions should be 
kept to a minimum if the fuil benefit of the established 
copyright protection granted under the Berne and Universal 
Copyright Conventions is not to be overly diluted. Accordingly, 
the present Directive seeks as far as possible to stay within the 
common parameters of literary work protection as it exists 
today in the Member States of the EC. 
3.9. Computer program protection by means of copyright 
raises two particular issues, that of standardization of aspects of 
programs in the interests of greater inter-operability of 
hardware and software, and that of availability of information 
concerning the access protocols and interfaces which ensure 
such inter-operability. Moves towards greater standardization of 
products within the computer and telecommunications industries 
are well under way, through the encouragement and initiatives 
of both the Commission itself and the industries concerned. 
Many aspects of computer hardware and software inter-oper­
ability are already governed by the International Standards 
Organization's Open Standards initiative. In addition, the 
existence of bodies such as X-Open indicates a willingness on 
the part of industry to cede proprietary rights in some parts of 
programs into the public domain in order to achieve greater 
compatibility between systems. The provisions of this Directive 
should contribute to the trend towards a greater use of stan­
dardization in so far as they determine with more legal certainty 
what are the exclusive rights of the author of the program. 
3.10. As regards the question of the protection of 'access 
protocols and interfaces' themselves, the question was raised in 
the Green Paper as to whether copyright protection should 
apply to these parts of programs. 
No C 91/8 Official Journal of the European Communities 12. 4. 89 
3.11. In order to produce inter-operative systems it is 
necessary to replicate the ideas, rules or principles by which 
interfaces between systems are specified, but not necessarily to 
reproduce the code which implements them. Ideas, rules or 
principles are not copyrightable subject matter. Such ideas, rules 
or principles may be used by any programmer in the creation of 
an independent implementation of them in an inter-operative 
program. 
3.12. Competitors are therefore free, once they establish 
through independent analysis which ideas, rules or principles are 
being used, to create their own implementation of the ideas, 
rules or principles in order to make compatible products. They 
may build on the identical idea, but may not use the same 
expression as that of other protected programs. There is thus no 
monopoly on the information itself, but only a protection of the 
form of expression of that information. 
3.13. If similarities in the code which implements the ideas, 
rules or principles occur as between inter-operative programs, 
due to the inevitability of certain forms of expression, where the 
constraints of the interface are such that in the circumstances no 
different implementation is possible, then no copyright 
infringement will normally occur, because in these circum­
stances it is generally said that idea and expression have merged. 
3.14. Although it is technically possible to decompile a 
program in order to find out information concerning access 
protocols and interfaces this is a lengthy, costly and inefficient 
procedure. It is usually more efficient for the parties concerned 
to agree on the terms under which the information will be made 
available. Problems of access to information may have to be 
addressed by other means which are outside the scope of this 
Directive. 
3.15. In view of the rapid evolution of the computer 
industries the Commission will keep all these matters under 
constant review. 
4. Relation to international conventions 
Copyright has the added advantage of affording a high level of 
international protection to works so covered, through the 
application of the Berne and Universal Copyright Conventions. 
Although neither convention expressly mentions computer 
programs among the works to be covered by copyright it is 
generally understood that as new forms of intellectual property 
are developed they will be encompassed by the conventions in 
so far as the same kinds of creativity are involved in the elabo­
ration of such new forms of work as for existing works. The 
conclusion that computer programs are indeed literary 'works' 
within the meaning of the Berne and Universal Copyright 
Conventions leads to the assumption that where a Member State 
grants protection under the Berne Convention it will apply the 
principle of national treatment. Whatever the theoretical merits 
of 'sui generis' legislation in this field might be, they are far 
outweighed by the advantages of the existence of these interna­
tional conventions. 5. Legal basis 
5.1. In its White Paper on the completion of the internal 
market, the Commission stated its intention to pay particular 
attention to the introduction of a Community framework for 
the legal protection of software and announced a proposal for a 
Directive. The present proposal therefore forms part of the 
Commission's program for the completion of the internal 
market before 31 December 1992. 
5.2. It follows from the approach of fixing basic common 
principles that a Directive is the appropriate legal instrument to 
harmonize the laws of the Member States as regards the legal 
protection of computer programs. 
5.3. Because differences in and uncertainties regarding the 
legal protection of computer programs can have a negative 
effect on the functioning of the common market in these 
products, Article 100A is the appropriate legal basis for the 
present proposal. 
For the completion of the internal market before 31 December 
1992, Article 100A, first paragraph, second sentence, provides 
by way of derogation from Article 100: 
'The Council shall, acting by a qualified majority on a proposal 
from the Commission in cooperation with the European 
Parliament and after consulting the Economic and Social 
Committee, adopt the measures for the approximation of the 
provisions laid down by law, regulation or administrative action 
in Member States which have as their object the establishment 
and functioning of the internal market'. 
Article 8A, second paragraph, defines the internal market as 
comprising 'an area without internal frontiers in which the free 
movement of goods, persons, services and capital is ensured in 
accordance with the provisions of this Treaty.' 
5.4. The present proposal will favour the free circulation of 
computer programs in so far as industry in those countries with 
clear and established protection of computer programs is 
currently in a more favourable position than that in countries 
where protection is uncertain; such differences in legal 
protection distort the conditions of establishment and of compe­
tition in Member States for firms which engage in activities 
concerned with computer programs. This situation may affect 
the growth of the Community software industry and the 
operation of the internal market. In addition by harmonizing 
the conditions under which the results of research and devel­
opment in the computer program field are legally protected on a 
uniform basis in the Member States, innovation and technical 
progress throughout the Community will be encouraged. 
5.5. In the preparation of this proposal the Commission has 
taken into account the requirements of Article 8C of the EEC 
Treaty and has concluded that no special provisions or dero­
gations seem warranted or justified at this stage. 
5.6. Likewise the Commission has studied the question of the 
high level of health/safety/environmental and consumer 
protection required by the terms of Article 100A (3) of the EEC 
Treaty. 
It has done so following consultation with the industrial and 
social partners concerned, and in the light of an analysis of the 
risks inherent in this area and of the current technical capa­
bilities of European industry. The proposal takes full account of 
these considerations in the light of the overall objectives of this 
provision of the Treaty. 
12. 4. 89 Official Journal of the European Communities No C 91/9 
PART TWO: 
Article 1 
Object of protection 
1. The words 'computer program' are not defined for the 
purposes of this Article. It has been recommended by experts in 
the field that any definition in a directive of what constitutes a 
program would of necessity become obsolete as future tech­
nology changes the nature of programs as they are known 
today. 
Given the present state of the art, the word 'program' should be 
taken to encompass the expression in any form, language, 
notation or code of a set of instructions, the purpose of which is 
to cause a computer to execute a particular task or function. 
The term should be taken to encompass all forms of program, 
both humanly perceivable and machine readable, from which 
the program which causes the machine to perform its function 
has been or can be created. 
Preparatory and design material such as flow charts or 
descriptions of sequences of steps in plain language will be 
included, as will embodiments of the program within the 
hardware itself, either permanently or in removable form. 
Material such as user manuals or maintenance manuals will not 
be considered to be parts or manifestations of the program, 
except that where substantial parts of the program are 
reproduced therein, those extracts from the program will be 
protected by copyright in the program independently from any 
rights which may subsist in the manual or other documentation. 
2. Member States shall be required to apply the same 
provisions for the protection of computer programs as apply to 
literary works. A program has all the characteristics of a literary 
work, namely that it is the expression in language and in a 
perceivable form from which it can be reproduced of an idea or 
series of ideas, created by the expenditure of human skill and 
labour. The fact that the language may be only comprehensible 
to those skilled in the art, and that some manifestations of the 
program may take forms which are not at all times 
comprehensible to the human senses does not preclude 
protection as a literary work, since other literary works may 
also be embodied in carriers which require a mechanical device 
to render them perceivable to the human mind. 
In order to avoid legal uncertainty, computer programs must be 
protected as literary works and not 'as if they were literary 
works or 'assimilated to' literary works. Similarly they should 
not be treated as a new and separate 'sub-category' of literary 
work. Failure to accord the full protection given to literary 
works generally in Member States could result in divergencies in 
the nature and scope of protection and in uncertainties as to the 
level of protection afforded to such works under the Berne and 
Universal Copyright Conventions. 
3. Copyright protects the expression of ideas but not the 
ideas themselves. Therefore the protection given to computer 
programs will extend to the program as a whole, and to its 
constituent parts, in so far as they represent a sufficient degree 
of creativity to qualify as 'works' in themselves. The only PROVISIONS 
criterion which should be applied to determine the eligibility for 
protection is that of originality, that is, that the work has not 
been copied. No other aesthetic or qualitative test should be 
applied. Sub-routines and routines which go together to form 
modules which in turn form programs may all qualify for 
protection independently of the protection given to the program 
as a whole, that is, as a compilation of such elements. The algo­
rithms which go to make up the sub-routines are not normally 
in themselves capable of receiving protection under copyright in 
so far as they are similar in nature to mathematical formulae. 
They may in exceptional circumstances attract patent protection. 
Similarly, the ideas, principles, or logic which underlie the 
program will not be copyrightable. 
4. (a) Many algorithms and many sub-routines are 
commonplace in the industry. They may have been 
placed or have fallen into the public domain or they may 
be de facto standard routines or algorithms. Where a 
program is composed wholly or in part of such 
commonplace or unprotected algorithms and routines, it 
should nevertheless be protected as a compilation, 
provided that it is original in the abovementioned sense 
and that the creator demonstrated skill and labour in the 
creation of the compilation. 
(b) An increasingly large number of programs are now 
generated by using a computer. This means that program 
A is used in order to create programs B, C and so on 
with some degree of human intervention in order to 
select the most appropriate means to achieve the 
objective. Program A could in this repect be likened to a 
literary work such as a dictionary which permits the 
creation of other literary works. Although much of the 
routine programming work is done by purely mechanical 
means, human effort is still nevertheless a critical element 
in the creative process. It is therefore proposed that in so 
far as programs generated by such means fulfil the 
criteria which would enable them to be categorized as 
'original works' they should be protected in the same 
way as programs created without the aid of such 
machine generation processes. 
Article 2 
Authorship of program 
1. In common with all literary works, the question of auth­
orship of the program is to be resolved in favour of the natural 
person or persons who have created the work. Although the 
right to exercise exclusive rights may be assigned to another, the 
author will retain at least the unalienable rights to claim 
paternity of his work. 
2. Copyright in a work created by a group of persons, which 
is normally the case with the development of computer 
programs, is to be exercised in common unless the persons 
concerned contract otherwise. 
3. Computer programs are frequently created by freelance 
programmers working on particular projects on behalf of organ-
No C 91/10 Official Journal of the European Communities 12. 4. 89 
izations which have commissioned a given program. In such 
circumstances, unless the parties agree otherwise, it is normal 
that the person or entity which causes the work to be created 
should wish to retain the control over the exclusive rights in the 
program, with the exception of the right to claim paternity of 
the work mentioned in paragraph 2.1 above. computer programs. Where Member States afford protection on 
the basis of first publication of a literary work in a Member 
State, that criterion should also apply to computer programs. 
Thus the rules of national treatment under the Berne 
Convention will be applied to computer programs as to all other 
literary works. 
4. In circumstances where a programmer is employed to 
create programs within a company or organization, the 
employer will normally require that the exclusive rights in the 
program should remain within his control, with the exception of 
the right to claim paternity of the work, unless the parties agree 
otherwise. In respect of the circumstances described in this 
paragraph and in paragraph 2.3 above, it is the intention of this 
Directive that a certain measure of harmonization of current 
practice in Member States should be brought about. Never­
theless the freedom to negotiate contracts of employment and 
terms for commissioned works must remain to a large extent a 
subject for contractual negotiation between the parties. 2. As mentioned above, computer programs are frequently 
the creation of large teams of programmers, some of whom 
would not be currently eligible for protection under the 
residence, nationality or first publication criteria outlined in 
paragraph 1 above. This anomaly can be removed by extending 
the application of Articles 3 and 5 of the Berne Convention to 
all authors where a work has been created jointly, provided that 
at least one member of the group is able to establish a right to 
protection. In this way, programmers from outside the 
Community and in particular programmers from developing 
countries who cooperate on joint projects with programmers 
from Member States will not be unfairly disadvantaged. 
In respect of other aspects of authors' moral rights such as the 
right to maintain the integrity of the work, the nature of 
computer programs is such that substantial modification and 
re-utilization of parts of programs is constantly taking place and 
the concept of integrity of the work is of much less relevance to 
the author's interests than has traditionally been the case with 
other literary works. 
5. As indicated in 4 (b), a large number of works are now 
generated by means of a computer program which serves as a 
tool to generate new programs. The question arises as to 
whether authorship of these programs generated by the first 
computer program should reside with the creator of the first 
program, or with the person who causes it to generate other 
works. Since the first program is no different in its function 
from any other tool used to create a work, such as an 
instruction manual by means of which another work is created, 
it would seem appropriate that the person who uses such a tool 
to generate programs should be considered as the creator of 
those programs. In practice, such a person may be the operator 
of the computer, or the natural or legal persons who retain the 
right to exercise the rights in programs which they have 
commissioned or which have been created by their employees. 
In these circumstances it is doubtful that a right to claim 
paternity of the programs generated by a machine could be 
upheld. The human input as regards the creation of machine 
generated programs may be relatively modest, and will be 
increasingly modest in future. Nevertheless, a human 'author' in 
the widest sense is always present, and must have the right to 
claim 'authorship' of the program. 
Article 3 
Beneficiaries of protection 
1. Where the literary works of natural and legal persons are 
currently protected by copyright in Member States either by 
virtue of nationality or residence, in the case of natural persons, 
or by having a real and effective presence in a Member State in 
the case of legal persons, the same protection will apply for Article 4 
Restricted acts 
1. (a) Under traditional copyright protection for literary works 
the author's exclusive rights comprise the right to control 
reproduction, adaptation and translation of his work. 
The Berne Convention does not expressly give a right to 
control the distribution of works but the exclusive rights 
in respect of reproduction are in practice exercised in 
most countries of the Berne Union to allow the author to 
determine how his work shall be put on the market. 
The right to control reproduction given in Article 4 (1) 
(a) is fundamental to achieve adequate protection for 
computer programs. Unlike other forms of literary work, 
a computer program cannot serve its purpose unless it is 
'reproduced'. This 'reproduction' should not be confused 
with 'replication'. The program may be re-created in part 
or in whole as part of the internal processes of the 
computer which runs it. No second permanent copy of 
the program is made during this process, although parts 
of the program will be 'reproduced' and stored in other 
parts of the memory of the computer during the 
operation of the program. These temporary copying, 
moving and storing operations may leave no trace once 
the operation of the machine has terminated. Thus 
'copying' in the traditional sense of producing a second 
permanent version of an original does not normally take 
place unless a 'back-up' copy of the program is made. 
Nevertheless, where programs are licensed, reproduction 
without authorization should be prohibited, principally 
because all the acts which could be prejudicial to the 
author's interests, namely, loading, viewing, running, 
transmitting or storing the program cannot be performed 
except by means of a reproduction of the program. 
Loading of the program is to be considered a restricted 
act in so far as it normally at the present time necessitates 
reproduction of the program in part or in whole. In 
future programs may be more often contained in media 
which can be inserted physically into the computer, such 
as chips, or may be an integral part of the hardware. In 
these circumstances, reproduction of the program may 
12. 4. 89 Official Journal of the European Communities No C 91/11 
no longer be necessary in order to work on it. For the 
present time, and in view of the risk of unauthorized 
users entering and corrupting programs, it is felt that 
loading should remain under the author's exclusive 
control. Similarly, viewing, running, transmission and 
storage of the program all involve reproduction and are 
potentially damaging to the right holder's interests. 
Computer programs are especially vulnerable not only to 
copying by electronic means but also to unauthorized 
adaptation, destruction or corruption, either for financial 
gain or for political objectives. Computer programs 
controlling banking, military or security operations must 
be protected against attack by 'hacking' — that is 
unauthorized entry into the system in order to remove, 
add or change information contained within it. Such acts 
of fraud or sabotage can only be controlled if authors 
have wide and enforceable powers to protect programs 
against reproduction. 
(b) Adaptation of a literary work normally implies transfor­
mation of a given text such as a novel into another 
literary 'genre' such as a play. Translation of a literary 
work is normally done from one human language into 
another. In the case of computer programs, whether the 
act is a translation from humanly readable form into 
machine readable form, or from one programming 
language to another, or an adaptation of a program 
designed to perform one task in order that it may 
perform another, the term 'adaptation' best describes the 
activities involved. It is therefore to be understood that 
'adaptation' in this Directive includes 'translation'. 
(c) Distribution of a computer program by means of sale or 
licence is normally controlled by the author of the 
program, either directly if he is also the producer of the 
marketed product, or indirectly by assignment of his 
right to a publisher or producer of programs. The 
author's right is normally exhausted once the product has 
been put on the market with his consent. This Directive 
proposes that as regards the rental, leasing and licensing 
of software, the distribution right should not be 
exhausted by the first sale, leasing or licensing of the 
program. This will enable the right holder to exercise 
control over rental of products which have been 
previously sold, leased or licensed and to have continued 
control over the rental, leasing or licensing of products 
which have been previously distributed by these means. 
Once a product has been sold with the right holder's 
consent he should no longer be able to exercise control 
over subsequent sale, that is sale to third parties of 
legally acquired programs. Likewise, as regards 
importation for the purposes of sale, licensing, lease or 
rental, once the program has been imported into the 
Community with the author's consent, his right to 
control subsequent importation will be exhausted. It is essential to permit right holders to control the rental 
of programs which have been sold or licensed if copying 
of programs without authorization is to be prevented. It 
is possible at present to rent a copy of a software 
package at a nominal charge, to copy it at home using 
relatively inexpensive material and to return it the 
following day. It is clear that given the complexity of 
most programs and the fact that they are used for a given 
purpose rather than read for enjoyment, cheap, 
short-term rental allows the home copier to save on the 
cost of purchasing or leasing programs: as such, rental is 
highly prejudicial to right holders' interests and should 
be subject to the right to prohibition, with the limited 
exceptions indicated in Article 5 below. 
Article 5 
Exceptions to the restricted acts 
1. Where a program is sold to the public, it is normal that 
certain rights to use the property thus acquired should apply. 
These rights should of necessity include the right to use the 
program without further express authorization from the right 
holder. It should not be necessary to obtain the right holder's, 
authorization in order to lend the program to a third party or to 
use it on a given piece of apparatus or in a given location. 
Similarly the acts of loading, viewing, running, transmission or 
storage should be taken as not requiring express authorization 
of the right holder provided that, particularly in the case of 
transmission and storage, they are only carried out for the 
purposes of using the program and do not result in a second 
permanent replication of the program. Thus temporary or 
permanent transmission to and storage by a second party of a 
program legally acquired by a purchaser for his own use will 
not fall within the exceptions to the restricted acts enumerated 
in Article 4, whereas such acts of transmission and storage 
performed by the purchaser temporarily for the purposes of 
using the program himself will not require authorization by the 
right holder. Similarly any form of reproduction other than that 
required for use will not be permitted, in particular, the making 
of a back-up copy or a copy for private use. Where a back-up 
copy is necessary for the purposes of use of a program this is 
normally expressly permitted by the right holder. 
All reproduction should be controllable whether it is of part of 
the program or of the entire program, in that a partial repro­
duction may be sufficient to cause considerable economic harm 
to the author's interests, for example, by copying the protocol 
and interface program elements of a given program. 
As regards the Anglo-Saxon law concept of 'fair dealing' by 
which reproduction of insubstantial parts of literary works is 
permitted in certain circumstances, it is believed that in respect 
of licensed programs, which constitutes the most common 
method of commercialization at present, the parties are free to 
No C 91/12 Official Journal of the European Communities 12. 4. 89 
negotiate exceptions to the author's exclusive right to control 
insubstantial reproduction of the program if circumstances 
warrant such a derogation. In the case of programs which are 
sold or made available by means other than a written license 
agreement signed by both parties, the provisions which exist in 
the copyright laws of Member States in relation to exceptions to 
the exclusive rights of the author of a literary work should 
continue to apply in the case of computer programs. 
Where the current practice of 'shrink-wrap' licensing applies, 
program producers impose conditions on the use of programs 
which have been in reality 'sold' to the consumer. The 
provisions of Articles 4 and 5 are intended to have as their 
effect that where software is licensed in the normal sense of the 
word, right holders will be able to exercise exclusive rights in 
respect of all acts of reproduction and adaptation, the exact 
provisions being the subject of contractual arrangements under 
the terms of the licence. But where no written, signed licence 
agreement is employed, as is the case with 'shrink-wrap' licences 
(the customer being merely advised by means of instructions 
contained within the packaging which surrounds the program 
carrier of his rights in respect of his purchase) the provisions of 
Article 5 (1) will allow the purchaser to assume the rights 
described above. This is a necessary compromise between the 
interests of suppliers and consumers of computer programs. 
Article 4 of the Directive gives wide powers to right holders to 
control the acts of reproduction, adaptation and distribution, 
but these powers should not in fairness be used to circumscribe 
the normal enjoyment of property by a person who legally 
acquires a program by purchase. If program producers wish to 
ensure the greater degree of control over the reproduction, 
adaptation and distribution of their programs which the system 
of licences permits, the would-be 'purchaser' of a program 
should be required to read and sign a legally binding licence 
agreement at the point of sale. 
2. Adaptation and translation of programs are acts which the 
licensee of sophisticated programs may frequently wish to do in 
the course of normal use of the program. Many custom-made 
computer programs have not stabilized when they are supplied 
to end users; similarly many programs require correction in use 
or adaptation to changes in user requirements. This correction 
and adaptation work could in many instances be done by the 
user. However the supplier has a number of reasons for wishing 
to maintain his exclusive rights to control adaptation and trans­
lation. A guarantee and maintenance contract may attach to the 
program which has been supplied and such guarantee and main­
tenance arrangements may be invalidated or rendered expensive 
and impracticable if the licensee is able to constantly amend his 
licensed program. The supplier will also frequently set the 
licence rate to take into account the use which can be made of 
the program, in terms of the number of users and the amount of 
program which can be accessed. Such control is exercised by 
means of copy protection and metering systems incorporated in 
the program itself. If the user were able to adapt the program, 
he would be at liberty to remove these control mechanisms. Therefore any adaptation and translation which is done should 
be subject to the right holder's control in the case of licensed 
software and should be the subject of contractual arrangements 
between supplier and user. 
3. The exclusive right to control rental given in Article 4 (c) 
is subject to a derogation in favour of one group of users for 
whom special arrangements can and should be made. This is 
non-profit making public libraries where members of the public 
may go to use and to study computer programs. Libraries are 
able to control the use made of such programs by means of 
safeguards to prevent their duplication or their removal from 
the premises. It is important, given the need to encourage 
computer literacy in all sections of the Community, that 
libraries are able to offer computer programs for study by the 
public in the same way as they offer other literary works. 
Article 6 
Secondary infringement 
1. In order to ensure that right holders may bring successful 
actions against infringers of the exclusive rights given in Article 
4, it is necessary to provide for the cases where infringing copies 
have been put in circulation. The ease with which unauthorized 
copies of programs can be transferred electronically from one 
'host' computer to another, across national borders and without 
trace, requires that the importation and possession of infringing 
copies should also be actionable as should be all dealing with 
infringing copies in the sense of selling, offering for sale, 
receiving, transmitting and storing such copies. 
2. Many programs are marketed with a technical protection 
system which prevents or limits their unauthorized use or repro­
duction. If such systems are used by right holders to protect 
their exclusive rights, it should not be legally possible to remove 
or circumvent such systems without the authorization of the 
right holder. The term 'deal with' should be taken in this 
context to include sale, offer or advertise for sale, transmit, 
store or receive such means to circumvent protection systems, 
and to include also the communication of information as to the 
means for circumvention or removal of protection systems. 
Article 7 
Term of protection 
Although the term of protection for literary works is life of 
author plus 50 years, attaching the term of protection 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. These hesitations outweigh the benefits 
of maintaining the classical 'literary work' term. 
12. 4. 89 Official Journal of the European Communities No C 91/13 
Proposal for a Council Directive on the legal protection of computer programs 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the European 
Economic Community, and in particular Article 100A 
thereof, 
Having regard to the proposal from the Commission, 
In cooperation with the European Parliament, 
Having regard to the opinion of the Economic and 
Social Committee, 
Whereas computer programs are at present not clearly 
protected in all Member States by existing legislation and 
such protection, where it exists, has different attributes; 
Whereas the development of computer programs requires 
the investment of considerable human, technical and 
financial resources while computer programs can be 
copied at a fraction of the cost needed to develop them 
independently; 
Whereas computer programs are playing an increasingly 
important role in a broad range of industries and 
computer program technology can accordingly be 
considered as being of fundamental importance for the 
Community's industrial development; 
Whereas certain differences in the legal protection of 
computer programs offered by the laws of the Member 
States have direct and negative effects on the functioning 
of the common market as regards computer programs 
and such differences could well become greater as 
Member States introduce new legislation on this subject; 
Whereas existing differences having such effects need to 
be removed and new ones prevented from arising, while 
differences not adversely affecting the functioning of the 
common market to a substantial degree need not be 
removed or prevented from arising; 
Whereas the Community's legal framework on the 
protection of computer programs can accordingly in the 
first instance be limited to establishing that Member 
States should accord protection to computer programs 
under copyright law as literary works and further in 
establishing who and what should be protected, the 
exclusive rights on which protected persons should be 
able to rely in order to authorize or prohibit certain acts, 
and for how long the protection should apply; Whereas for this purpose, a logical and, where appro­
priate, physical interconnection and interaction is 
required to permit all elements of software and hardware 
to work with other software and hardware and with 
users in all the ways they are intended to function; 
whereas the principles describing any such means of 
interconnection and interaction are generally known as 
'an interface'; whereas the specification of interfaces 
constitutes ideas and principles which underlie the 
program; whereas those ideas and principles are not 
copyrightable subject matter; 
Whereas the Community is fully committed to the 
promotion of international standardization; 
Whereas protection of computer programs under 
copyright laws should be without prejudice to the 
application in appropriate cases of other forms of 
protection, 
HAS ADOPTED THIS DIRECTIVE: 
CHAPTER I 
Article 1 
Object of protection 
1. Member States shall protect computer programs by 
conferring exclusive rights in accordance with the 
provisions of this Directive. 
2. Exclusive rights shall be conferred by the provisions 
of copyright laws. Protection shall be accorded to 
computer programs as literary works. 
3. 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, principles, 
logic, algorithms or programming languages underlying 
the program. Where the specification of interfaces 
constitutes ideas and principles which underlie the 
program, those ideas and principles are not copyrightable 
subject matter. 
4. (a) A computer program shall not be protected unless 
it satisfies the same conditions as regards its origi­
nality as apply to other literary works. 
Whereas the function of a computer program is to 
communicate and work with other components of a 
computer system and with users; (b) Programs generated by means of a computer shall 
be protected in so far as they satisfy the 
conditions laid down in point (a). 
No C 91/14 Official Journal of the European Communities 12. 4. 89 
Article 2 
Authorship of program 
1. Subject to the following paragraphs, the author of a 
computer program is the natural person or group of 
natural persons who has created the program. 
2. In respect of computer programs created by a 
group of natural persons, the exclusive rights shall be 
exercised in common unless otherwise provided by 
contract. 
3. Where a computer program is created under a 
contract, the natural or legal person who commissioned 
the program shall be entitled to exercise all rights in 
respect of the program, unless otherwise provided by 
contract. 
4. Where a computer program is created in the course 
of employment, the employer shall be entitled to exercise 
all rights in respect of the program, unless otherwise 
provided by contract. 
5. In respect of programs which are generated by the 
use of a computer program, the natural or legal person 
who causes the generation of subsequent programs shall 
be entitled to exercise all rights in respect of the 
programs, unless otherwise provided by contract. 
Article 3 
Beneficiaries of protection 
1. Protection shall be granted to all natural or legal 
persons eligible under national copyright legislation as 
applied to literary works. 
2. In the case referred to in Article 2 (2) the computer 
program shall be protected in favour of all authors if at 
least one author is a beneficiary of protection in 
accordance with paragraph 1 of this Article. 
Article 4 
Restricted acts 
Subject to the provisions of Article 5, the exclusive rights 
referred to in Article 1 shall include the right to do or to 
authorize: 
(a) the reproduction of a computer program by any 
means and in any form, in part or in whole. In so far 
as they necessitate a reproduction of the program in 
part or in whole, loading, viewing, running, trans­
mission or storage of the computer program shall be 
considered restricted acts; (b) the adaptation of a computer program; 
(c) the distribution of a computer program by means of 
sale, licensing, lease, rental and the importation for 
these purposes. The right to control the distribution 
of a program shall be exhausted in respect of its sale 
and its importation following the first marketing of 
the program by the right holder or with his consent. 
Article 5 
Exceptions to the restricted acts 
1. Where a computer program has been sold or made 
available to the public other than by a written licence 
agreement signed by both parties, the acts enumerated in 
Article 4 (a) and (b) shall not require the authorization 
of the right holder, in so far as they are necessary for the 
use of the program. Reproduction and adaptation of the 
program other than for the purposes of its use shall 
require the authorization of the right holder. 
2. Where a computer program has been sold or made 
available to the public by means other than a written 
licence agreement signed by both parties, the exclusive 
right of the right holder to authorize rental shall not be 
exercised to prevent use of the program by the public in 
non-profit making public libraries. 
Article 6 
Secondary infringement 
1. It shall be an infringement of the author's exclusive 
rights in the computer program to import, possess or 
deal with an infringing copy of the program, knowing or 
having reason to believe it to be an infringing copy of 
the work. 
2. It shall be an infringement of the author's exclusive 
rights in the computer program to make, import, possess 
or deal with articles intended specifically to facilitate the 
removal or circumvention of any technical means which 
may have been applied to protect a program. 
Article 7 
Term of protection 
Protection shall be granted for 50 years from the date of 
creation. 
12. 4. 89 Official Journal of the European Communities No C 91/15 
CHAPTER II 
Article 8 
Continued application of other legal provisions 
1. The provisions of this Directive shall be without 
prejudice to any legal provisions concerning patent 
rights, trade marks, unfair competition, trade secrets or 
the law of contract in so far as such provisions do not 
conflict with the principles laid down in the present 
Directive. 
2. The provisions of this Directive are applicable also 
in respect of works created prior to [date in Article 9]. CHAPTER III 
Article 9 
Final provisions 
1. Member States shall bring into force the laws, 
regulations or administrative provisions needed in order 
to comply with this Directive by [date]. 
2. Member States shall ensure that they communicate 
to the Commission the texts of the provisions of national 
law which they adopt in the field covered by this 
Directive. 
Article 10 
This Directive is addressed to the Member States. 
No C 91/16 Official Journal of the European Communities 12. 4. 89 
Commission conclusions decided on the occasion of the adoption of the Commission's proposal 
for a Council Directive on the legal protection of computer programs 
In adopting a proposal for a Council Directive on the legal protection of computer programs 
the Commission approves the following policy guidelines. It affirms its conviction that 
computer programs, given the intellectual effort and the financial investment which may be 
necessary for their creation and the ease with which they can be copied, merit adequate legal 
protection. Following a worldwide trend, the Commission proposes copyright as a suitable 
legal basis for ensuring a balance between an effective level of protection and the interests of 
users. Divergencies between the copyright statutes of the Member States as to the availability 
and scope of the protection have caused the Commission to initiate the harmonization process 
in view of the objective of completing the internal market. 
Software is an industrial tool which is essential to the Community's economic development. 
The grant of exclusive rights under copyright law will create incentives for software developers 
to invest their intellectual and financial resources and thereby to promote technical progress in 
the public interest. Technical progress and public welfare, however, are also ensured by a 
system of indistorted competition, one of the principal goals of the Treaty. Exclusive 
proprietary rights and free competition, while in principle designed to achieve the same 
objective by different means, may conflict where a copyright owner is in a position to exercise 
his statutory exclusive rights beyond their intended purpose. The exercise of exclusive copy­
rights will not prejudice the application of the competition rules and the imposition of effective 
remedies in appropriate cases. Further, the Community commitment to international standardi­
zation in the fields of information technology and telecommunications must not be 
compromised. 
The relation between the Community's competition rules and copyright is governed by the 
European Court's distinction between the existence and the exercise of the intellectual property 
rights in question. Any arrangement or measure which goes beyond the existence of copyright 
can be subject to control under the competition rules. This means that for example any attempt 
to extend by contractual agreements or other arrangements the scope of protection to aspects 
of the programs for which protection under copyright is not available, or the prohibition of any 
act which is not reserved for the right owner may constitute an infringement of the competition 
rules. 
Moreover, companies in a dominant position must not abuse that position within the meaning 
of Article 86 of the Treaty. For example, under certain circumstances the exercise of copyright 
as to the aspects of a program, which other companies need to use in order to write compatible 
programs, could amount to such an abuse. This could also be the case if a dominant company 
tries to use its exclusive rights in one product to gain an unfair advantage in relation to one or 
more products not covered by these rights. 
Furthermore, the ability of a competing manufacturer to write an independent but compatible 
program often depends on his possibility to have access to the target program or to certain 
information relating to it. Access to information is not a matter of copyright law. Article 86 
always applies where a dominant company abusively refuses access to such information or 
restricts unreasonably such access.