No C 320/22 Official Journal of the European Communities 20. 12. 90 
II 
(Preparatory Acts) 
COMMISSION 
Amended proposal for a Council Directive on the legal protection of computer programs 
COM(90) 509 final — SYN 183 
(Submitted by the Commission pursuant to Article 149 (3) of the EEC Treaty on 18 October 1990) 
(90/C 320/11) 
ORIGINAL PROPOSAL AMENDED PROPOSAL 
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 program 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; THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
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20. 12. 90 Official Journal of the European Communities No C 320/23 
ORIGINAL PROPOSAL AMENDED PROPOSAL 
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; Unchanged 
Whereas for the purpose of this Directive the term 
'computer program' shall include programs in any form, 
including those which are incorporated into hardware; 
whereas this term also includes preparatory design work 
leading to the development of a computer program 
provided that the nature of the preparatory work is such 
that a computer program can result from it at a later 
stage; 
Whereas the Community is fully committed to the 
promotion of international standardization; 
Whereas the function of a computer program is to 
communicate and work together with other components 
of a computer system and with users and for this purpose 
a logical and where appropriate 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 in respect of the criteria to be applied in deter­
mining whether or not a computer program is an original 
work, no tests as to the qualitive or aesthetic merits of 
the program should be applied; 
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The principles describing any such means of intercon­
nection and interaction are generally known as 'an 
interface'. Where the specification of interfaces 
constitutes ideas and principles which underlie the 
program, those ideas and principles are not copyrightable 
subject matter. Whereas the parts of the program which provide for 
such interconnection and interaction between elements 
of software and hardware are generally known as 
'interfaces'. 
Whereas this functional interconnection and interaction 
is generally known as 'interoperability'; whereas such 
interoperability can be defined as the ability to exchange 
information and to mutually use the information which 
has been exchanged; 
Whereas for the avoidance of doubt it has to be made 
clear that only the expression of a computer program is 
protected and that ideas and principles which underlie 
any element of a program, including those which 
underlie its interfaces, are not protected by copyright 
under this Directive; 
Whereas in accordance with this principle of copyright, 
to the extent that logic, algorithms and programming 
languages comprise ideas and principles, those ideas and 
principles are not protected under this Directive; 
No C 320/24 Official Journal of the European Communities 20. 12. 90 
ORIGINAL PROPOSAL AMENDED PROPOSAL 
Whereas protection of computer programs under 
copyright laws should be without prejudice to the 
application in appropriate cases of other forms of 
protecton; Whereas, in accordance with the legislation and juris­
prudence of the Member States and the international 
copyright conventions, the expression of those ideas and 
principles is to be protected by copyright. 
Whereas the exclusive rights of the author to prevent the 
unauthorized reproduction of his work have to be 
subject to a limited exception in the case of a computer 
program to allow the reproduction technically necessary 
for the use of that program by its lawful acquirer; 
Whereas a person having a right to use a computer 
program should not be prevented from performing acts 
necessary to observe, study or test the functioning of the 
program provided that these acts do not infringe the 
copyright in the program; 
Whereas the unauthorized reproduction, translation, 
adaptation or transformation of the form of the code in 
which a copy of a computer program has been made 
available constitutes an infringement of the exclusive 
rights of the author; 
Whereas, nevertheless, circumstances may exist when 
such a reproduction of the code and translation of its 
form are indispensable to obtain the necessary infor­
mation to ensure that a new interoperable program can 
be created or can function; 
Whereas it has therefore to be considered that in these 
limited circumstances, performance of the acts of repro­
duction and translation by or on behalf of a person 
having a right to use a copy of the program is legitimate 
and compatible with fair practice, and must therefore 
be deemed not to require the authorization of the 
rightholder; 
Whereas such an exception to the author's exclusive 
rights may not be applied in a way which prejudices the 
legitimate interests of the rightholder, or which conflicts 
with a normal exploitation of the program; 
Whereas in order to remain in accordance with the 
provisions of the Berne Convention for the Protection of 
Literary and Artistic Works, the term of protection 
should be the life of the author and 50 years from the 
first of January of the year following the year of his 
death, or in the case of an anonymous or pseudonymous 
work, 50 years from the first of January of the year 
following the year in which the work is first published; 
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Whereas the provisions of this Directive are without 
prejudice to the application of the competition rules 
under Articles 85 and 86 of the EEC Treaty if a 
dominant supplier refuses to make information available 
which is necessary for interoperability as defined in this 
Directive; 
20. 12. 90 Official Journal of the European Communities No C 320/25 
ORIGINAL PROPOSAL AMENDED PROPOSAL 
Whereas the provisions of this Directive should be 
without prejudice to specific requirements of Community 
law already enacted in respect of the publication of 
interfaces in the telecommunication sector or Decisions 
of the Council relating to standardization in the field of 
information technology and telecommunication; 
HAS ADOPTED THIS DIRECTIVE: HAS ADOPTED THIS DIRECTIVE: 
CHAPTER I 
Article 1 CHAPTER I 
Article 1 
Object of protection 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. 1. In accordance with the provisions of this Directive 
Member States shall protect computer programs, by 
copyright, as literary works within the meaning of the 
Berne Convention for the Protection of Literary and 
Artistic Works. For the purposes of this Directive the 
term 'computer programs' shall include their preparatory 
design material. 
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. 2. Protection in accordance with this Directive shall 
apply to the expression in any form of a computer 
program. Ideas and principles which underlie any 
element of a computer program, including those which 
underlie its interfaces, are not protected by copyright 
under this Directive. 
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. 3. A computer program shall be protected if it is 
original in the sense that it is the author's own intel­
lectual creation. No other criteria shall be applied to 
determine its eligibility for protection. 
(b) Programs generated by means of a computer shall 
be protected insofar as they satisfy the conditions 
laid down in 4 (a) above. Deleted 
Article 2 Article 2 
Authorship of programs Authorship of programs 
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. 1. The author of a computer program shall be the 
natural person or group of natural persons who has 
created the program or, where the legislation of the 
Member State permits, the legal person designated as the 
rightholder by that legislation. Where collective works 
are recognized by the legislation of a Member State, the 
person considered by the legislation of the Member State 
to have created the work shall be deemed to be its 
author. 
No C 320/26 Official Journal of the European Communities 20. 12. 90 
ORIGINAL PROPOSAL AMENDED PROPOSAL 
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. Unchanged 
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. Unchanged 
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. 4. Where a computer program is created by an 
employee in the execution of his duties or following the 
instructions given by his employer, the employer shall be 
entitled to exercise all economic rights in the program so 
created, 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. Deleted 
Article 3 Article 3 
Beneficiaries of protection Beneficiaries of protection 
1. Protection shall be granted to all natural or legal 
persons eligible under national copyright legislation as 
applied to literary works. Unchanged 
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. Unchanged 
Article 4 Article 4 
Restricted acts Restricted acts 
Subject to the provisions of Article 5, the exclusive rights 
referred to in Article 1 shall include the right to do or 
authorize: Subject to the provisions of Article 5, the exclusive rights 
of the author 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; (a) the reproduction of a computer program by any 
means and in any form, in part or in whole, and for 
whatever purpose. In so far as they necessitate a 
permanent or temporary reproduction of the 
program, loading, displaying, running, transmission 
or storage of the computer program shall be subject 
to authorization by the rightholder; 
(b) the adaptation of a computer program; (b) the translation, adaptation, arrangement and any 
other alteration of a computer program and the 
reproduction of the results thereof; 
20. 12. 90 Official Journal of the European Communities No C 320/27 
ORIGINAL PROPOSAL AMENDED PROPOSAL 
(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. Unchanged 
Article 5 Article 5 
Exceptions to the restricted acts Exceptions to the restricted acts 
1. Where a computer program has been sold or made 
available to the public other than by a written license 
agreement signed by both parties, the acts enumerated in 
Article 4 (a) and (b) shall not require the authorization 
of the rightholder, in so far as they are necessary for the 
use of the program. Reproduction and adaptation of the 
computer other than for the purpose of its use shall 
require the authorization of the rightholder. 1. When a copy of a computer program has been sold, 
the acts referred to in Article 4 (a) and (b) shall not 
require the authorization by the rightholder where they 
are necessary for the use of the program by the lawful 
acquirer in accordance with its intended purpose, 
including for error correction. 
2. The provisions of paragraph 1 shall also apply to a 
licensee when the licence to use a copy of a computer 
program does not contain specific provisions dealing 
with such acts. The licence may not prevent the loading 
and running of a copy of a computer program necessary 
for its use by the licensee in accordance with its intended 
purpose. 
3. The making of a back-up copy by a person having 
a right to use the program may not be prevented by 
contract in so far as it is necessary for that use. 
2. Where a computer program has been sold or made 
available to the public by means other than a written 
license agreement signed by both parties, the exclusive 
right of the rightholder to authorize rental shall not be 
exercised to prevent use of the program by the public in 
non-profit-making public libraries. 4. Where a copy of a computer program has been 
made lawfully available to the public and in the absence 
of contractual provisions to the contrary, the right to 
authorize rental shall not be exercised to prevent normal 
use of the program in non-profit-making public libraries. 
5. Subject to the provisions of Article 4 (a) the person 
having a right to use a copy of a program shall be 
entitled, without the authorization of the right-holder, to 
observe, study or test the functioning of the program in 
order to determine the ideas, principles and other 
elements which underlie the program and which are not 
protected by copyright, if he does so while performing 
any of the acts of loading, displaying, running, trans­
mitting or storing the program which he is entitled to do. 
No C 320/28 Official Journal of the European Communities 20. 12. 90 
ORIGINAL PROPOSAL AMENDED PROPOSAL 
Article 5a 
Amendment to the form of the code 
1. Notwithstanding contractual provisions to the 
contrary, the authorization of the owner of the rights 
shall not be required where reproduction of the code and 
translation of its form are indispensable to achieve the 
creation, maintenance or functioning of an indepen­
dently created interoperable program, provided that the 
following conditions are met: 
(a) these acts are performed by the licensee or by 
another person having a right to use a copy of a 
program, or on their behalf by a person authorized 
to do so; 
(b) the information necessary to achieve interoperability 
has not previously been published, or made available 
to the persons referred to in point (a); and 
(c) these acts are confined to the parts of the original 
program which are necessary to achieve interoper­
ability with it. 
2. The provisions of paragraph 1 of this Article shall 
not permit the information obtained through its 
application: 
(a) to be used for goals other than to achieve the inter­
operability of the independently created program; 
(b) to be given to others, except when necessary for the 
interoperability of the independently created 
program; or 
(c) to be used for the creation or marketing of a 
program which infringes copyright in respect of the 
original program, and in particular of a program 
substantially similar in its expression. 
3. In accordance with the provisions of the Berne 
Convention for the protection of Literary and Artistic 
works, the provisions of this Article may not be inter­
preted in such a way as to allow its application to be 
used in a manner which unreasonably prejudices the 
rightholder's legitimate interests or conflicts with a 
normal exploitation of the computer program. 
20. 12. 90 Official Journal of the European Communities No C 320/29 
ORIGINAL PROPOSAL 
Article 6 AMENDED PROPOSAL 
Article 6 
Secondary infringement 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. Unchanged 
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 
have been applied to protect a program. Unchanged 
Article 7 Article 7 
Term of protection Term of protection 
Protection shall be granted for 50 years from the date of 
creation. Protection shall be granted for the life of the author and 
for 50 years after his death; where the computer 
program is an anonymous or pseudonymous work, the 
term of protection shall be 50 years from the time that 
the computer program is first lawfully made available to 
the public. The term of protection shall be deemed to 
begin on the first of January of the year following the 
abovementioned events. 
CHAPTER II CHAPTER II 
Article 8 Article 8 
Continued application of other legal provisions 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. 1. The provisions of this Directive shall be without 
prejudice to any other legal provisions such as those 
concerning patent rights, trade marks, unfair compe­
tition, trade secrets, protection of semi-conductor 
products or the law of contract. 
2. The provisions of this Directive are applicable also 
in respect of works created prior to (date in Article 9). 2. The provisions of this Directive are applicable also 
to programs created prior to 1 January 1993 without 
prejudice to any acts concluded and rights acquired 
before that date. 
No C 320/30 Official Journal of the 
ORIGINAL PROPOSAL 
CHAPTER III 
Article 9 
Final provisions 
1. Member States shall bring into force the laws, 
regulations or administrative provisions needed in order 
to transpose this Directive by 1 January 1993. 
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 European Communities 20. 12. 90 
AMENDED PROPOSAL 
CHAPTER III 
Article 9 
Final provisions 
Unchanged 
2. Member States shall communicate to the 
Commission the provisions of national law which they 
adopt in order to transpose this Directive. 
Article 10 
This Directive is addressed to the Member States. Unchanged