Proposal for a Directive of the European Parliament and of the Council on the term of protection of copyright and certain related rights (Codified version)
Date: 2006-05-19
Institutions: European Commission
Subjects: EC Directive, codification of EU law, copyright, intellectual property, literature, software, visual arts

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 19.5.2006 
COM(2006) 219 final 

2006/0071 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the term of protection of copyright and certain related rights 

(Codified version) 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

In  the  context  of  a  people’s  Europe,  the  Commission  attaches  great  importance  to 
simplifying  and  clarifying  Community  law  so  as  to  make  it  clearer  and  more 
accessible to the ordinary citizen, thus giving him new opportunities and the chance 
to make use of the specific rights it gives him. 

This aim cannot be achieved so long as numerous provisions that have been amended 
several times, often quite substantially, remain scattered, so that they must be sought 
partly  in  the  original  instrument  and  partly  in  later  amending  ones.  Considerable 
research work, comparing many different instruments, is thus needed to identify the 
current rules. 

For  this  reason  a  codification  of  rules  that  have  frequently  been  amended  is  also 
essential if Community law is to be clear and transparent. 

On  1  April  1987  the  Commission  therefore  decided1  to  instruct  its  staff  that  all 
legislative acts should be codified after no more than ten amendments, stressing that 
this  is  a  minimum  requirement  and  that  departments  should  endeavour  to  codify  at 
even  shorter  intervals  the  texts  for  which  they  are  responsible,  to  ensure  that  the 
Community rules are clear and readily understandable. 

The  Conclusions  of 
the  Edinburgh  European  Council 
(December 1992) confirmed this2, stressing the importance of codification as it offers 
certainty as to the law applicable to a given matter at a given time. 

the  Presidency  of 

Codification  must  be  undertaken  in  full  compliance  with  the  normal  Community 
legislative procedure. 

Given  that  no  changes  of  substance  may  be  made  to  the  instruments  affected  by 
codification, the European Parliament, the Council and the Commission have agreed, 
by  an  interinstitutional  agreement  dated  20  December  1994,  that  an  accelerated 
procedure may be used for the fast-track adoption of codification instruments. 

is 

this  proposal 

to  undertake  a  codification  of  Council 
The  purpose  of 
Directive 93/98/EEC  of  29  October  1993  harmonising  the  term  of  protection  of 
copyright  and  certain  related  rights3.  The  new  Directive  will  supersede  the  various 
acts  incorporated  in  it4;  this  proposal  fully  preserves  the  content  of  the  acts  being 
codified  and  hence  does  no  more  than  bring  them  together  with  only  such  formal 
amendments as are required by the codification exercise itself. 

COM(87) 868 PV. 
See Annex 3 to Part A of the Conclusions. 
Carried out pursuant to the Communication from the Commission to the European Parliament and the 
Council – Codification of the Acquis communautaire, COM(2001) 645 final. 
See Annex I, Part A of this proposal. 

1. 

2. 

3. 

4. 

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2 
3 

4 

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5. 

The codification proposal was drawn up on the basis of a preliminary consolidation, 
in  all  official  languages,  of  Directive  93/98/EEC  and  the  instrument  amending  it, 
carried out by the Office for Official Publications of the European Communities, by 
means  of  a  data-processing  system.  Where  the  Articles  have  been  given  new 
numbers,  the  correlation  between  the  old and  the  new  numbers  is  shown  in  a  table 
contained in Annex II to the codified Directive. 

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(cid:208) 93/98/EEC (adapted) 

2006/0071 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

⌦ on ⌫ the term of protection of copyright and certain related rights 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Articles ⌦ 47 ⌫ (2), ⌦ 55 ⌫ and ⌦ 95 ⌫ thereof, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Economic and Social Committee5, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty6, 

Whereas: 

(1) 

Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection 
of  copyright  and  certain  related  rights7  has  been  substantially  amended8.  In  the 
interests of clarity and rationality the said Directive should be codified. 

(cid:208)  

(cid:208) 93/98/EEC Recital 1 (adapted) 

(2) 

The  Berne  Convention  for  the  protection  of  literary  and  artistic  works  and  the 
International  Convention  for  the  protection  of  performers,  producers  of  phonograms 
and broadcasting organisations (Rome Convention) lay down only minimum terms of 
protection of the rights they refer to, leaving the Contracting States free to grant longer 
terms. Certain Member States have exercised this entitlement. 

5 
6 
7 

8 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ L 290, 24.11.1993, p. 9. Directive as amended by Directive 2001/29/EC of the European Parliament 
and of the Council (OJ L 167, 22.6.2001, p. 10). 
See Annex I, Part A. 

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(cid:208) 93/98/EEC Recital 2 

(3) 

There are consequently differences between the national laws governing the terms of 
protection  of  copyright  and  related  rights,  which  are  liable  to  impede  the  free 
movement of goods and freedom to provide services, and to distort competition in the 
common  market.  Therefore,  with  a  view  to  the  smooth  operation  of  the  internal 
market, the laws of the Member States should be harmonised so as to make terms of 
protection identical throughout the Community. 

(4)  ⌦ It is important to lay down ⌫ not only the terms of protection as such, but also 
certain  implementing  arrangements,  such  as  the  date  from  which  each  term  of 
protection is calculated. 

(cid:208) 93/98/EEC Recital 3 (adapted) 

(5) 

The  provisions  of  this  Directive  ⌦ should ⌫  not  affect  the  application  by  the 
Member States of the provisions of Article 14a(2)(b), (c) and (d) and (3) of the Berne 
Convention. 

(cid:208) 93/98/EEC Recital 4 (adapted) 

(cid:208) 93/98/EEC Recital 5 

(6) 

The minimum term of protection laid down by the Berne Convention, namely the life 
of the author and 50 years after his death, was intended to provide protection for the 
author  and  the  first  two  generations  of  his  descendants.  The  average  lifespan  in  the 
Community has grown longer, to the point where this term is no longer sufficient to 
cover two generations. 

(7) 

Certain Member States have granted a term longer than 50 years after the death of the 
author in order to offset the effects of the world wars on the exploitation of authors' 
works. 

(cid:208) 93/98/EEC Recital 6 

(8) 

For the  protection  of related rights certain  Member States have  introduced a  term of 
50 years after lawful publication or lawful communication to the public. 

(cid:208) 93/98/EEC Recital 7 

(9) 

Under the Community position adopted for the Uruguay Round negotiations under the 
General Agreement on Tariffs and Trade (GATT) the term of protection for producers 
of phonograms should be 50 years after first publication. 

(cid:208) 93/98/EEC Recital 8 

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(cid:208) 93/98/EEC Recital 9 (adapted) 

(10)  Due regard for established rights is one of the general principles of law protected by 
the Community legal order. Therefore, the terms of protection of copyright and related 
rights  ⌦ established  by  Community  law ⌫  cannot  have  the  effect  of  reducing  the 
protection enjoyed by rightholders in the Community ⌦ prior to the entry into force 
of Directive 93/98/EEC ⌫. In order to keep the effects of transitional measures to a 
minimum and to allow the internal market to operate in practice, ⌦ those terms ⌫ of 
protection should be ⌦ applied for long periods ⌫. 

(11)  ⌦ The  level  of  protection  of  copyright  and  related  rights  should  be  high, ⌫  since 
those rights are fundamental to intellectual creation ⌦ . Their ⌫ protection ensures 
the  maintenance  and  development  of  creativity  in  the  interest  of  authors,  cultural 
industries, consumers and society as a whole. 

(cid:208) 93/98/EEC Recital 10 (adapted) 

(cid:208) 93/98/EEC Recital 11 

(12) 

In  order  to  establish  a  high  level  of  protection  which  at  the  same  time  meets  the 
requirements  of  the  internal  market  and  the  need  to  establish  a  legal  environment 
conducive  to  the  harmonious  development  of  literary  and  artistic  creation  in  the 
Community,  the  term  of  protection  for  copyright  should  be  harmonised  at  70  years 
after the death of the author or 70 years after the work is lawfully made available to 
the  public,  and  for  related  rights  at  50  years  after  the  event  which  sets  the  term 
running. 

(cid:208) 93/98/EEC Recital 12  

(13)  Collections are protected according to Article 2(5) of the Berne Convention when, by 
reason  of  the  selection  and  arrangement  of  their  content,  they  constitute  intellectual 
creations.  Those  works  are  protected  as  such,  without  prejudice  to  the  copyright  in 
each  of  the  works  forming  part  of  such  collections.  Consequently,  specific  terms  of 
protection may apply to works included in collections. 

(14) 

In all cases where one or more physical persons are identified as authors, the term of 
protection  should  be  calculated  after  their  death.  The  question  of  authorship  in  the 
whole or a part of a work is a question of fact which the national courts may have to 
decide. 

(cid:208) 93/98/EEC Recital 13 

(15)  Terms  of  protection  should  be  calculated  from  the  first  day  of  January  of  the  year 
following the relevant event, as they are in the Berne and Rome Conventions. 

(cid:208) 93/98/EEC Recital 14 

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(cid:208) 93/98/EEC Recital 17 (adapted) 

(16)  The protection of photographs in the Member States is the subject of varying regimes. 
In  order  to  ⌦ ensure  a  sufficient ⌫  term  of  protection  of  photographic  works,  in 
particular  of  those  which,  due  to  their  artistic  or  professional  character,  are  of 
importance within the internal market, it is necessary to define the level of originality 
required  in  this  Directive.  A  photographic  work  within  the  meaning  of  the  Berne 
Convention  is  to  be  considered  original  if  it  is  the  author's  own  intellectual  creation 
reflecting his personality,  no other criteria such as merit or purpose being taken into 
account. The protection of other photographs should be left to national law. 

(cid:208) 93/98/EEC Recital 18 

(17) 

In  order  to  avoid  differences  in  the  term  of  protection  as  regards  related  rights  it  is 
necessary to provide the same starting point for the calculation of the term throughout 
the  Community.  The  performance,  fixation,  transmission,  lawful  publication,  and 
lawful communication to the public, that is to say the means of making a subject of a 
related right perceptible in all appropriate ways to persons in general, should be taken 
into  account  for  the  calculation  of  the  term  of  protection  regardless  of  the  country 
where  this  performance,  fixation,  transmission,  lawful  publication,  or  lawful 
communication to the public takes place. 

(cid:208) 93/98/EEC Recital 19 

(18)  The rights of broadcasting organisations in their broadcasts, whether these broadcasts 
are transmitted by wire or over the air, including by cable or satellite, should not be 
perpetual. It is therefore necessary to have the term of protection running from the first 
transmission  of  a  particular  broadcast  only.  This  provision  is  understood  to  avoid  a 
new term running in cases where a broadcast is identical to a previous one. 

(cid:208) 93/98/EEC Recital 20 

(19)  The Member States should remain free to maintain or introduce other rights related to 
copyright  in  particular  in  relation  to  the  protection  of  critical  and  scientific 
publications.  In  order  to  ensure  transparency  at  Community  level,  it  is  however 
necessary  for  Member  States  which  introduce  new  related  rights  to  notify  the 
Commission. 

(20) 

It ⌦ should be made ⌫ clear that this Directive does not apply to moral rights. 

(cid:208) 93/98/EEC Recital 21 (adapted) 

(21)  For works whose country of origin within the meaning of the Berne Convention is a 
third country and whose author is not a Community national, comparison of terms of 
protection should be applied, provided that the term accorded in the Community does 
not exceed the term laid down in this Directive. 

(cid:208) 93/98/EEC Recital 22 

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(22)  Where a rightholder who is not a Community national qualifies for protection under an 
international agreement, the term of protection of related rights should be the same as 
that  laid  down  in  this  Directive,  except  that  it  should  not  exceed  that  fixed  in  the 
country of which the rightholder is a national. 

(cid:208) 93/98/EEC Recital 23 

(23)  Comparison  of  terms  should  not  result  in  Member  States  being  brought  into  conflict 

with their international obligations. 

(cid:208) 93/98/EEC Recital 24 

(24)  Member States should remain free to adopt provisions on the interpretation, adaptation 
and  further  execution  of  contracts  on  the  exploitation  of  protected  works  and  other 
subject  matter  which  were  concluded  before  the  extension  of  the  term  of  protection 
resulting from this Directive. 

(cid:208) 93/98/EEC Recital 26 

(cid:208) 93/98/EEC Recital 27 

(25)  Respect of acquired rights and legitimate expectations is part of the Community legal 
order.  Member  States  may  provide  in  particular  that  in  certain  circumstances  the 
copyright and related rights which are revived pursuant to this Directive may not give 
rise to payments by persons who undertook in good faith the exploitation of the works 
at the time when such works lay within the public domain. 

(26)  This  Directive  should  be  without  prejudice  to  the  obligations  of  the  Member  States 
relating  to  the  time-limits  for  transposition  into  national  law  and  application  of  the 
Directives set out in Annex I, Part B, 

(cid:208)  

HAVE ADOPTED THIS DIRECTIVE: 

(cid:208) 93/98/EEC 

Article 1 

Duration of authors' rights 

1. 

2. 

The rights of an author of a literary or artistic work within the meaning of Article 2 
of the Berne Convention shall run for the life of the author and for 70 years after his 
death,  irrespective  of  the  date  when  the  work  is  lawfully  made  available  to  the 
public. 

In the case of a work of joint authorship, the term referred to in paragraph 1 shall be 
calculated from the death of the last surviving author. 

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3. 

4. 

5. 

6. 

1. 

2. 

1. 

In the case of anonymous or pseudonymous works, the term of protection shall run 
for 70 years after the work is lawfully made available to the public. However, when 
the  pseudonym  adopted  by  the  author  leaves  no  doubt  as  to  his  identity,  or  if  the 
author  discloses  his  identity  during  the  period  referred  to  in  the  first  sentence,  the 
term of protection applicable shall be that laid down in paragraph 1. 

Where a Member State provides for particular provisions on copyright in respect of 
collective works or for a legal person to be designated as the rightholder, the term of 
protection  shall  be  calculated  according  to  the  provisions  of  paragraph  3,  except  if 
the natural persons who have created the work are identified as such in the versions 
of  the  work  which  are  made  available  to  the  public.  This  paragraph  is  without 
prejudice  to  the  rights  of  identified  authors  whose  identifiable  contributions  are 
included in such works, to which contributions paragraph 1 or 2 shall apply. 

Where a work is published in volumes, parts, instalments, issues or episodes and the 
term of protection runs from the time when the work was lawfully made available to 
the public, the term of protection shall run for each such item separately. 

In the case of works for which the term of protection is not calculated from the death 
of  the  author  or  authors  and  which  have  not  been  lawfully  made  available  to  the 
public within 70 years from their creation, the protection shall terminate. 

Article 2 

Cinematographic or audiovisual works 

The principal director of a cinematographic or audiovisual work shall be considered 
as its author or one of its authors. Member States shall be free to designate other co-
authors. 

The term of protection of cinematographic or audiovisual works shall expire 70 years 
after the death of the last of the following persons  to survive, whether or not these 
persons  are  designated  as  co-authors:  the  principal  director,  the  author  of  the 
screenplay, the author of the dialogue and the composer of music specifically created 
for use in the cinematographic or audiovisual work. 

Article 3 

Duration of related rights 

The  rights  of  performers  shall  expire  50  years  after  the  date  of  the  performance. 
However,  if  a  fixation  of  the  performance  is  lawfully  published  or  lawfully 
communicated to the public within this period, the rights shall expire 50 years from 
the date of  the first such publication or the first such communication to the public, 
whichever is the earlier. 

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2. 

3. 

4. 

(cid:208) 2001/29/EC Art. 11(2) 

The  rights  of  producers  of  phonograms  shall  expire  50  years  after  the  fixation  is 
made. However, if the phonogram has been lawfully published within this period, the 
said  rights  shall  expire  50  years  from  the  date  of  the  first  lawful  publication.  If  no 
lawful publication has taken place within the period mentioned in the first sentence, 
and  if  the  phonogram  has  been  lawfully  communicated  to  the  public  within  this 
period,  the  said  rights  shall  expire  50  years  from  the  date  of  the  first  lawful 
communication to the public. 

(cid:208) 2001/29/EC Art. 11(2) 
(adapted) 

However, ⌦ if those rights were no longer protected on 22 December 2002 pursuant 
to Article 2(2) of Directive 93/98/EEC, ⌫ this paragraph shall not have the effect of 
protecting ⌦ them ⌫ anew. 

(cid:208) 93/98/EEC 

The rights of producers of the first fixation of a film shall expire 50 years after the 
fixation  is  made.  However,  if  the  film  is  lawfully  published  or  lawfully 
communicated to the public during this period, the rights shall expire 50 years from 
the date of the  first such publication  or the first such communication to the public, 
whichever  is  the  earlier.  The  term  “film”  shall  designate  a  cinematographic  or 
audiovisual work or moving images, whether or not accompanied by sound. 

The  rights  of  broadcasting  organisations  shall  expire  50  years  after  the  first 
transmission of a broadcast, whether this broadcast is transmitted by wire or over the 
air, including by cable or satellite. 

Article 4 

Protection of previously unpublished works 

Any person who, after the expiry of copyright protection, for the first time lawfully publishes 
or lawfully communicates to the public a previously unpublished work, shall benefit from a 
protection  equivalent  to  the  economic  rights  of  the  author.  The  term  of  protection  of  such 
rights shall be 25 years from the time when the work was first lawfully published or lawfully 
communicated to the public. 

Article 5 

Critical and scientific publications 

Member States may protect critical and scientific publications of works which have come into 
the public domain. The maximum term of protection of such rights shall be 30 years from the 
time when the publication was first lawfully published. 

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Article 6 

Protection of photographs 

Photographs which are original in the sense that they are the author's own intellectual creation 
shall be protected in accordance with Article 1. No other criteria shall be applied to determine 
their  eligibility  for  protection.  Member  States  may  provide  for  the  protection  of  other 
photographs. 

Article 7 

Protection vis-à-vis third countries 

1. 

2. 

3. 

Where the country of origin of a work, within the meaning of the Berne Convention, 
is a third country, and the author of the work is not a Community national, the term 
of protection granted by the Member States shall expire on the date of expiry of the 
protection granted in the country of origin of the work, but may not exceed the term 
laid down in Article 1. 

The  terms  of  protection  laid  down  in  Article  3  shall  also  apply  in  the  case  of 
rightholders who are not Community nationals, provided Member States grant them 
protection.  However,  without  prejudice  to  the  international  obligations  of  the 
Member States, the term of protection granted by Member States shall expire no later 
than  the  date  of  expiry  of  the  protection  granted  in  the  country  of  which  the 
rightholder is a national and may not exceed the term laid down in Article 3. 

(cid:208) 93/98/EEC (adapted) 

Member  States  which,  ⌦ on  29  October  1993 ⌫,  in  particular  pursuant  to  their 
international obligations, granted a longer term of protection than that which would 
result  from  the  provisions,  referred  to  in  paragraphs  1  and  2,  may  maintain  this 
protection until the conclusion of international agreements on the term of protection 
of copyright or related rights. 

(cid:208) 93/98/EEC (adapted) 

Article 8 

Calculation of terms 

The terms laid down in this Directive ⌦ shall be ⌫ calculated from the first day of January 
of the year following the event which gives rise to them. 

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(cid:208) 93/98/EEC 

Article 9 

Moral rights 

This  Directive  shall  be  without  prejudice  to  the  provisions  of  the  Member  States  regulating 
moral rights. 

Article 10 

Application in time 

1. 

2. 

3. 

4. 

(cid:208) 93/98/EEC (adapted) 

Where a term of protection, which is longer than the corresponding term provided for 
by  this  Directive,  ⌦ was ⌫  already  running  in  a  Member  State  ⌦ on  1  July 
1995 ⌫, this Directive shall not have the effect of shortening that term of protection 
in that Member State. 

The  terms  of  protection  provided  for  in  this  Directive  shall  apply  to  all  works  and 
subject matter which ⌦ were ⌫ protected in at least one Member State on the date 
referred  to  in  ⌦ paragraph  1 ⌫,  pursuant  to  national  provisions  on  copyright  or 
related  rights,  or  which  meet  the  criteria  for  protection  under  ⌦ Council ⌫ 
[Directive 92/100/EEC] ⌦ 9 ⌫. 

This Directive shall be without prejudice to any acts of exploitation performed before 
the date referred to in ⌦ paragraph 1 ⌫. Member States shall adopt the necessary 
provisions to protect in particular acquired rights of third parties. 

Member States need not apply the provisions of Article 2(1) to cinematographic or 
audiovisual works created before 1 July 1994. 

(cid:208) 93/98/EEC 

(cid:208) 93/98/EEC Art. 12 (adapted) 

Article 11 

Notification ⌦ and communication ⌫  

⌦ 1. ⌫ Member States shall immediately notify the Commission of any governmental plan 
to grant new related rights, including the basic reasons for their introduction and the term of 
protection envisaged. 

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OJ L 346, 27.11.1992, p. 61. 

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⌦ 2. ⌫ Member States shall communicate to the Commission the texts of the provisions of 
national law which they adopt in the field governed by this Directive. 

(cid:208) 93/98/EEC (adapted) 

(cid:208)  

Article 12 

Repeal 

Directive  93/98/EEC,  as  amended  by  the  Directive  listed  in  Annex  I,  Part  A,  is  repealed 
without  prejudice  to  the  obligations  of  the  Member  States  relating  to  the  time-limits  for 
transposition into national law and application of the Directives set out in Annex I, Part B. 

References  to  the  repealed  Directive  shall  be  construed  as  references  to  this  Directive  and 
shall be read in accordance with the correlation table in Annex II. 

Article 13 

Entry into force 

This Directive shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

(cid:208) 93/98/EEC (adapted) 

Article 14 

⌦ Addressees ⌫ 

This Directive is addressed to the Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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(cid:207) 

ANNEX I 

Part A 

Repealed Directive with its amendment 
(referred to in Article 12) 

Council Directive 93/98/EEC 
(OJ L 290, 24.11.1993, p. 9) 

Directive 2001/29/EC of the European Parliament 
and of the Council 
(OJ L 167, 22.6.2001, p. 10) 

Article 11(2) only 

Part B 

List of time-limits for transposition into national law and application 
(referred to in Article 12) 

Directive 

Time-limit for transposition 

Date of application 

93/98/EEC 

1 July 1995 (Articles 1 to 11)  19 November 1993 

(Article 12) 

1 July 1997 at the latest as 
regards Article 2(1) 
(Article 10(5) 

2001/29/EC 

22 December 2002 

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ANNEX II 

CORRELATION TABLE 

Directive 93/98/EEC 

This Directive 

Articles 1 to 9 

Article 10(1) to (4) 

Article 10 (5) 

Article 11 

Article 12 

Articles 1 to 9 

Article 10(1) to (4) 

- 

- 

Article 11(1) 

Article 13(1) first subparagraph 

Article 13(1) second subparagraph 

- 

- 

Article 13(1) third subparagraph 

Article 11(2) 

Article 13(2) 

- 

- 

Article 14 

- 

- 

- 

Article 12 

Article 13 

Article 14 

Annex I 

Annex II 

____________ 

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