Proposal for a Directive …/…/EC of the European Parliament and of the Council on the legal protection of computer programs (Codified version)
Date: 2008-01-28
Institutions: European Commission
Subjects: codification of EU law, computer piracy, copyright, data-processing law, software

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 28.1.2008 
COM(2008) 23 final 

2008/0019 (COD) 

Proposal for a 

DIRECTIVE …/…/EC OF THE EUROPEAN PARLIAMENT AND OF THE 
COUNCIL 

on the legal protection of computer programs 

(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 91/250/EEC  of  14  May  1991  on  the  legal  protection  of  computer 
programs3. 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. 

1 
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  91/250/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) 91/250/EEC (adapted) 

2008/0019 (COD) 

Proposal for a 

DIRECTIVE …/…/EC OF THE EUROPEAN PARLIAMENT AND OF THE 
COUNCIL 

of […] 

on the legal protection of computer programs 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community  and  in  particular 
Article ⌦ 95 ⌫ thereof, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Economic and Social Committee1, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty2, 

Whereas: 

(1) 

Council  Directive  91/250/EEC  of  14  May  1991  on  the  legal  protection  of  computer 
programs3  has  been  substantially  amended4.  In  the  interests  of  clarity  and  rationality 
the said Directive should be codified. 

(cid:208)  

(2) 

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. 

(cid:208) 91/250/EEC Recital 2 

1 
2 
3 
4 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ L 122, 17.5.1991, p. 42. Directive as amended by Directive 93/98/EEC (OJ L 290, 24.11.1993, p. 9). 
See Annex I, Part A. 

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(3) 

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. 

(cid:208) 91/250/EEC Recital 3 

(4) 

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 
⌦ internal ⌫ market as regards computer programs . 

(cid:208) 91/250/EEC Recital 4 (adapted) 

(5) 

(6) 

(7) 

(cid:208) 91/250/EEC Recital 5 (adapted) 

Existing differences having such effects need to be removed and new ones prevented 
from  arising,  while  differences  not  adversely  affecting  the  functioning  of  the 
⌦ internal ⌫ market to a substantial degree need not be removed or prevented from 
arising. 

(cid:208) 91/250/EEC Recital 6 

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,  to  establishing  who  and  what  should  be  protected,  the  exclusive  rights  on 
which protected persons should be able to rely in order to authorise or prohibit certain 
acts and for how long the protection should apply. 

(cid:208) 91/250/EEC Recital 7  

For the purpose of this Directive, the term “computer program” shall include programs 
in  any  form,  including  those  which  are  incorporated  into  hardware.  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. 

(8) 

In  respect  of  the  criteria  to  be  applied  in  determining  whether  or  not  a  computer 
program  is  an  original  work,  no  tests  as  to  the  qualitative  or  aesthetic  merits  of  the 
program should be applied. 

(cid:208) 91/250/EEC Recital 8 

(9) 

The Community is fully committed to the promotion of international standardisation. 

(cid:208) 91/250/EEC Recital 9 

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(cid:208) 91/250/EEC Recitals 10, 11 and 
12  

(10)  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 in which they are intended to function. The parts of the program 
which provide for such interconnection and interaction between elements of software 
and hardware are generally known as “interfaces”. This functional interconnection and 
interaction  is  generally  known  as  “interoperability”;  such  interoperability  can  be 
defined  as  the  ability  to  exchange  information  and  mutually  to  use  the  information 
which has been exchanged. 

(cid:208) 91/250/EEC Recitals 13, 14 and 
15 

(11)  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. 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.  In 
accordance  with  the  legislation  and  jurisprudence  of  the  Member  States  and  the 
international copyright conventions, the expression of those ideas and principles is to 
be protected by copyright. 

(12)  For  the  purposes  of  this  Directive,  the  term  “rental”  means  the  making  available  for 
use,  for  a  limited  period  of  time  and  for  profit-making  purposes,  of  a  computer 
program  or  a  copy  thereof.  This  term  does  not  include  public  lending,  which, 
accordingly, remains outside the scope of this Directive. 

(cid:208) 91/250/EEC Recital 16  

(cid:208) 91/250/EEC Recitals 17 and 18 
(adapted) 

(13)  The exclusive rights of the author to prevent the unauthorised reproduction of his work 
⌦ should ⌫ 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 the lawful 
acquirer.  This  means  that  the  acts  of  loading  and  running  necessary  for  the  use  of  a 
copy of a program which has been lawfully acquired, and the act of correction of its 
errors,  may  not  be  prohibited  by  contract.  In  the  absence  of  specific  contractual 
provisions,  including  when  a  copy  of  the  program  has  been  sold,  any  other  act 
necessary for the use of the copy of a program may be performed in accordance with 
its intended purpose by a lawful acquirer of that copy. 

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(14)  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. 

(cid:208) 91/250/EEC Recital 19 

(cid:208) 91/250/EEC Recitals 20, 21, 22, 
23 and 24 (adapted) 

(15)  The unauthorised 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. Nevertheless, circumstances may 
exist  when  such  a  reproduction  of  the  code  and  translation  of  its  form  are 
indispensable to obtain the necessary information to achieve the interoperability of an 
independently created program with other programs. It has therefore to be considered 
that, in these limited circumstances only, performance of the acts of reproduction 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 authorisation of the rightholder. An objective of this exception is to make it 
possible to connect all components of a computer system, including those of different 
manufacturers,  so  that  they  can  work  together.  Such  an  exception  to  the  author's 
exclusive rights may not be used in a way which prejudices the legitimate interests of 
the right holder or which conflicts with a normal exploitation of the program. 

(cid:208) 91/250/EEC Recital 25 
(adapted) 

(16) 

In  accordance  with  the  provisions  of  ⌦ Directive  2006/116/EC  of  the  European 
Parliament  and  of  the  Council  of  12  December  2006  on  the  term  of  protection  of 
copyright and certain related rights5 ⌫, the term of protection should be the life of the 
author  and  ⌦ seventy ⌫  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, 
⌦ seventy ⌫ years from the first of January of the year following the year in which 
the work is ⌦ lawfully made available to the public ⌫. 

(cid:208) 91/250/EEC Recital 26 
(adapted) 

(17)  Protection of computer programs under copyright laws should be without prejudice to 
the  application,  in  appropriate  cases,  of  other  forms  of  protection.  However,  any 
contractual  provisions  contrary  to  ⌦ the  provisions  of  this  Directive  laid  down  in 
respect  of  decompilation ⌫  or  to  the  exceptions  provided  for  ⌦ by  this  Directive 
with regard to the making of a back-up copy or to observation, study or testing of the 
functioning of a program ⌫ should be null and void. 

5 

OJ L 372, 27.12.2006, p. 12. 

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(cid:208) 91/250/EEC Recital 27 
(adapted) 

(18)  The  provisions  of  this  Directive  are  without  prejudice  to  the  application  of  the 
competition rules under Articles ⌦ 81 ⌫ and ⌦ 82 ⌫ of the Treaty if a dominant 
supplier refuses to make information available which is necessary for interoperability 
as defined in this Directive. 

(19)  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 
telecommunications sector or Council Decisions relating to standardisation in the field 
of information technology and telecommunication. 

(cid:208) 91/250/EEC Recital 28 

(20)  This  Directive  does  not  affect  derogations  provided  for  under  national  legislation  in 
accordance with the Berne Convention on points not covered by this Directive. 

(cid:208) 91/250/EEC Recital 29 

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

(cid:208)  

HAVE ADOPTED THIS DIRECTIVE: 

(cid:208) 91/250/EEC 

Article 1 

Object of protection 

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. 

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. 

3.  A  computer  program  shall  be  protected  if  it  is  original  in  the  sense  that  it  is  the  author's 
own  intellectual  creation.  No  other  criteria  shall  be  applied  to  determine  its  eligibility  for 
protection. 

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⌦ 4.  The  provisions  of  this  Directive  shall  apply  also  to  programs  created  before 
1 January 1993  without  prejudice  to  any  acts  concluded  and  rights  acquired  before  that 
date. ⌫ 

(cid:208) 91/250/EEC (adapted) 

(cid:208) 91/250/EEC 

Article 2 

Authorship of computer programs 

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  recognised  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. 

2.  In  respect  of  a  computer  program  created  by  a  group  of  natural  persons  jointly,  the 
exclusive rights shall be owned jointly. 

3.  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 exclusively shall be entitled to 
exercise all economic rights in the program so created, unless otherwise provided by contract. 

Article 3 

Beneficiaries of protection 

Protection  shall  be  granted  to  all  natural  or  legal  persons  eligible  under  national  copyright 
legislation as applied to literary works. 

Article 4 

Restricted Acts 

1. Subject to the provisions of Articles 5 and 6, the exclusive rights of the rightholder within 
the meaning of Article 2 shall include the right to do or to authorise: 

(a) 

the permanent or temporary reproduction of a computer program by any means and 
in any form, in part or in whole; insofar as loading, displaying, running, transmission 
or storage of the computer program necessitate such reproduction, such acts shall be 
subject to authorisation by the rightholder; 

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(b) 

(c) 

the  translation,  adaptation,  arrangement  and  any  other  alteration  of  a  computer 
program and the reproduction of the results thereof, without prejudice to the rights of 
the person who alters the program; 

any form of distribution to the public, including the rental, of the original computer 
program or of copies thereof. 

2.  The  first  sale  in  the  Community  of  a  copy  of  a  program  by  the  rightholder  or  with  his 
consent  shall  exhaust  the  distribution  right  within  the  Community  of  that  copy,  with  the 
exception of the right to control further rental of the program or a copy thereof. 

Article 5 

Exceptions to the restricted acts 

1. In the absence of specific contractual provisions, the acts referred to in Article 4(1)(a) and 
(b) shall not require authorisation by the rightholder where they are necessary for the use of 
the  computer  program  by  the  lawful  acquirer  in  accordance  with  its  intended  purpose, 
including for error correction. 

2. The making of a back-up copy by a person having a right to use the computer program may 
not be prevented by contract insofar as it is necessary for that use. 

3. The person having a right to use a copy of a computer program shall be entitled, without 
the authorisation of the rightholder, to observe, study or test the functioning of the program in 
order to determine the ideas and principles which underlie any element of the program if he 
does  so  while  performing  any  of  the  acts  of  loading,  displaying,  running,  transmitting  or 
storing the program which he is entitled to do. 

Article 6 

Decompilation 

1. The authorisation of the rightholder shall not be required where reproduction of the code 
and translation of its form within the meaning of Article 4(1)(a) and (b) are indispensable to 
obtain  the  information  necessary  to  achieve  the interoperability  of  an  independently  created 
computer program with other programs, provided that the following conditions are met: 

(a) 

(b) 

(c) 

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 authorised to do so; 

the information necessary to achieve interoperability has not previously been readily 
available to the persons referred to in point (a); and 

these  acts  are  confined  to  the  parts  of  the  original  program  which  are  necessary  to 
achieve interoperability. 

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2.  The  provisions  of  paragraph  1  shall  not  permit  the  information  obtained  through  its 
application: 

(a) 

(b) 

(c) 

to  be  used  for  goals  other  than  to  achieve  the  interoperability  of  the  independently 
created computer program; 

to  be  given  to  others,  except  when  necessary  for  the  interoperability  of  the 
independently created computer program; or 

to  be  used  for  the  development,  production  or  marketing  of  a  computer  program 
substantially similar in its expression, or for any other act which infringes copyright. 

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 interpreted in such a way as to 
allow its application to be used in a manner which unreasonably prejudices the right holder's 
legitimate interests or conflicts with a normal exploitation of the computer program. 

Article 7 

Special measures of protection 

1. Without prejudice to the provisions of Articles 4, 5 and 6, Member States shall provide, in 
accordance with their national legislation, appropriate remedies against a person committing 
any of the ⌦ following ⌫ acts : 

(cid:208) 91/250/EEC (adapted) 

(cid:208) 91/250/EEC 

(a) 

(b) 

(c) 

any act of putting into circulation a copy of a computer program knowing, or having 
reason to believe, that it is an infringing copy; 

the possession, for commercial purposes, of a copy of a computer program knowing, 
or having reason to believe, that it is an infringing copy; 

any act of putting into circulation, or the possession for commercial purposes of, any 
means the sole intended purpose of which is to facilitate the unauthorised removal or 
circumvention  of  any  technical  device  which  may  have  been  applied  to  protect  a 
computer program. 

2. Any infringing copy of a computer program shall be liable to seizure  in  accordance  with 
the legislation of the Member State concerned. 

3. Member States may provide for the seizure of any means referred to in paragraph 1(c). 

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Article 8 

Continued application of other legal provisions 

(cid:208) 91/250/EEC (adapted) 

The provisions of this Directive shall be without prejudice to any other legal provisions such 
as those concerning patent rights, trade-marks, unfair competition, trade secrets, protection of 
semi-conductor products or the law of contract. 

Any  contractual  provisions  contrary  to  Article  6  or  to  the  exceptions  provided  for  in 
Article 5(2) and (3) shall be null and void. 

⌦ Communication ⌫ 

Article 9 

Member  States  shall  communicate  to  the  Commission  the  provisions  of  national  law 
⌦ adopted ⌫ in the field governed by this Directive. 

(cid:208)  

Article 10 

Repeal 

Directive 91/250/EEC, as amended by the Directive indicated 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 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. 

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Article 11 

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) 91/250/EEC (adapted) 

Article 12 

⌦ Addressees ⌫ 

(cid:208) 91/250/EEC 

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 10) 

Council Directive 91/250/EEC 
(OJ L 122, 17.5.1991, p. 42) 

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

Article 11(1) only 

Part B 

List of time-limits for transposition into national law 
(referred to in Article 10) 

Directive 

Time-limit for transposition 

91/250/EEC 

93/98/EEC 

31 December 1992 

30 June 1995 

_____________

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ANNEX II 

CORRELATION TABLE 

Directive 91/250/EEC 

This Directive 

Article 1(1), (2) and (3) 

Article 1(1), (2) and (3) 

Article 2(1), first sentence 

Article 2(1), first subparagraph 

Article 2(1), second sentence 

Article 2(1), second subparagraph 

Article 2(2) and (3) 

Article 2(2) and (3) 

Article 3 

Article 3 

Article 4, introductory words 

Article 4(1), introductory words 

Article 4(a) 

Article 4(b) 

Article 4(c), first sentence 

Article 4(c), second sentence 

Article 4(1)(a) 

Article 4(1)(b) 

Article 4(1)(c) 

Article 4(2) 

Articles 5, 6 and 7 

Articles 5, 6 and 7 

Article 9(1), first sentence 

Article 8, first paragraph 

Article 9(1), second sentence 

Article 8, second paragraph 

Article 9(2) 

Article 10(1) 

Article 10(2) 

- 

- 

Article 11 

- 

- 

Article 1(4) 

- 

Article 9 

Article 10 

Article 11 

Article 12 

Annex I 

Annex II 

_____________ 

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