Source: EURLEX
Language: en
Format: md

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;

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:

The principles describing any such means of interconnection 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.

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 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 qualitive or aesthetic merits of
the program should be applied;

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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, 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.

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 information 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 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 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;

Whereas protection of computer programs under
copyright laws should be without prejudice to the
application in appropriate cases of other forms of

protecton;

Unchanged

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.

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 originality as apply to other literary works.

(b) Programs generated by means of a computer shall
be protected insofar as they satisfy the conditions
laid down in 4 (a) above.

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.

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.

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.

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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.

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.

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

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_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:

(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, transmission or storage of the computer program shall be
considered restricted acts;

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, 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.

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.

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.

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, transmitting 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 independently 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 interoperability 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 interoperability 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 interpreted 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.

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

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_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.

2. The provisions of this Directive are applicable also
in respect of works created prior to (date in Article 9).

1. 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.

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