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No C 92 / 6 Official Journal of the European Communities 11 . 4 . 92

II

( Preparatory Acts )

# COMMISSION

Proposal for a Council Directive harmonizing the term of protection of copyright and certain

related rights

( 92 / C 92 / 06 )

COM(92 ) 33 final — SYN 395

( Submitted by the Commission on 23 March 1992 )

THE COUNCIL OF THE EUROPEAN COMMUNITIES, Whereas 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

Having regard to the Treaty establishing the European his descendants ; whereas the average lifespan in the
Economic Community and in particular Articles 57 ( 2 ), Community has grown longer, to the point where this
66, 100a and 113 thereof, term is no longer sufficient to cover two generations ;

Having regard to the proposal from the Commission,

Whereas 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
in cooperation with the European Parliament, exploitation of authors ' works ;

Having regard to the opinion of the Economic and Whereas at the 1967 Stockholm conference for the
Social Committee, revision of the Berne Convention certain Member States '
delegations approved a resolution asking the contracting
states to extend the term of copyright protection ;
whereas in the discussions which have taken place within

Whereas the Berne Convention for the protection of the World Intellectual Property Organization ( WIPO ) in
literary and artistic works and the Rome Convention for preparation for a possible Protocol to the Berne
the protection of performers, producers of phonograms Convention this question has been put on the agenda ;

Whereas the Berne Convention for the protection of
literary and artistic works and the Rome Convention for
the protection of performers, producers of phonograms
and broadcasting organizations lay down only minimum
terms of protection of the rights they refer to, leaving the
contracting states free to grant longer terms ; whereas
certain Member States have exercised this entitlement ;
whereas in addition certain Member States have not
become party to the Rome Convention ;

Whereas for the protection of related rights certain

party to ; Member States have introduced a term of 50 years after

publication or dissemination ; whereas in other Member
States which are currently preparing legislation on the
subject the term of protection chosen is likewise 50
Whereas there are consequently differences between the years ;
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 ; whereas, therefore, with a view to the estab ­ Whereas the Community proposals for the Uruguay
lishment of the internal market and its operation Round negotiations under the General Agreement on
thereafter, the laws of the Member States should be Tariffs and Trade ( GATT ) provide for a term of
harmonized so as to make terms of protection identical protection for producers of phonograms of 50 years after
throughout the Community ; first publication ;

Whereas the Community proposals for the Uruguay

Round negotiations under the General Agreement on
Tariffs and Trade ( GATT ) provide for a term of
protection for producers of phonograms of 50 years after
first publication ;

11 . 4 . 92 Official Journal of the European Communities No C 92 / 7

Whereas due regard for established rights is one of the

Whereas Articles 9 and 10 of Council Directive ... on

rental right, lending right, and on certain rights related
to copyright make provision for minimum terms of
protection only, subject to any later harmonization ;
whereas these Articles should be repealed, in order to

align the terms of protection of those rights on the terms
laid down in this Directive ;

general principles of law protected by the Community rental right, lending right, and on certain rights related
legal order ; whereas, therefore, a harmonization of the to copyright make provision for minimum terms of
terms of protection of copyright and related rights protection only, subject to any later harmonization ;
cannot have the effect of reducing the protection whereas these Articles should be repealed, in order to
currently enjoyed by rightholders in the Community ; align the terms of protection of those rights on the terms
whereas in order to keep the effects of transitional laid down in this Directive ;
measures to a minimum and to allow the internal market
to begin operating in practice on 31 December 1992, the
harmonization of the term of protection should take
place on the basis of a long term ; Whereas under the Berne Convention photographic
works qualify for a minimum term of protection of only
25 years from their making ; whereas, moreover, certain
Member States have a composite system for the

Whereas in its communication of 17 January 1991, protection of photographic works, which are protected
' Follow-up to the Green Paper — Working programme by copyright if they are considered to be artistic works
of the Commission in the field of copyright and neigh ­ within the meaning of the Berne Convention and
bouring rights ' ('), the Commission stresses the need to protected under one or more other arrangements if they
harmonize copyright and neighbouring rights at a high are not so considered ; whereas provision should be made
level of protection since these rights are fundamental to for the complete harmonization of these differing terms
intellectual creation and their ensures the of protection ;

Whereas in its communication of 17 January 1991,, are
' Follow-up to the Green Paper — Working programme by copyright if they are considered to be artistic works
of the Commission in the field of copyright and neigh ­ within the meaning of the Berne Convention and
bouring rights ' ('), the Commission stresses the need to protected under one or more other arrangements if they
harmonize copyright and neighbouring rights at a high are not so considered ; whereas provision should be made
level of protection since these rights are fundamental to for the complete harmonization of these differing terms
intellectual creation and their protection ensures the of protection ;
maintenance and development of creativity in the interest
of authors, cultural industries, consumers and society as
a whole ;
Whereas in order to avoid differences in the term of
protection it is necessary that when a term of protection
begins to run in one Member State it should begin to run
throughout the Community ;
Whereas 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 Whereas Article 6a ( 2 ) of the Berne Convention provides
of literary and artistic creation in the Community, the that the moral rights of the author are to be maintained
term of protection for copyright should be harmonized after his death at least until the expiry of the economic
at 70 years after the death of the author or 70 years after rights ; whereas that provision can usefully be taken over
the work is lawfully made available to the public, and for in this Directive, without prejudice to any possible later
related rights at 50 years after the event which sets the harmonization of moral rights ;
term running ;

Whereas Article 6a ( 2 ) of the Berne Convention provides
that the moral rights of the author are to be maintained
after his death at least until the expiry of the economic
rights ; whereas that provision can usefully be taken over
in this Directive, without prejudice to any possible later
harmonization of moral rights ;

Whereas these terms 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 ;

Whereas Article 1 of Council Directive 91 / 250 / EEC of
14 May 1991 on the legal protection of computer
programs ( 2 ) provides that Member States are to protect
computer programs, by copyright, as literary works
within the meaning of the Berne Convention ( Paris Act,

Whereas the terms of protection laid down in this

Directive should also apply to literary and artistic works
whose country of origin within the meaning of the Berne
Convention is'a third country, but protection should not
exceed that fixed in the country of origin of the work ;

Whereas, 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 ;

1971 ); whereas the present Directive harmonizes the
term of protection of literary works in the Community ; of which the rightholder is a national ;
whereas Article 8 of Directive 91 / 250 / EEC, which
merely makes provisional arrangements governing the
term accordingly of protection be repealed of ; computer programs, should Whereas Member States this provision into conflict must with not their be allowed international to bring obli ­

gations ; whereas international obligations may require
the Member States to accord different treatment to
third-country nationals and their works, and this may
lead to disturbances on the Community market ; whereas
(') COM(90 ) 584 final . a procedure should therefore be laid down which enables

( 2 ) OJ No L 122, 17 . 5 . 1991, p. 42 . such difficulties to be remedied ;

( 2 ) OJ No L 122, 17 . 5 . 1991, p. 42 .

No C 92 / 8 Official Journal of the European Communities 11 . 4 . 92

Whereas rightholders should be able to enjoy the longer
terms of protection introduced by this Directive equally
throughout the Community provided their rights have
not yet expired on 31 December 1994,

HAS ADOPTED THIS DIRECTIVE :

Article 1

1 . 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 .

2 . 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 .

2 . The rights of producers of phonograms shall run
for 50 years from the first publication of the phonogram .
However, they shall expire 50 years after the fixation
was made if the phonogram has not been published
during that time .

3 . The rights of producers of the first fixations of
cinematographic works and of sequences of moving
images, whether or not accompanied by sound, shall
expire 50 years after the first publication . However, they
shall expire 50 years after the fixation was made if the
work or sequence of moving images has not been
published during that time .

4 . The rights of broadcasting organizations shall run
for 50 years from the first transmission of a broadcast .

Article 3

Protected photographs shall have the term of protection
provided for in Article 1 .
3 . In the case of anonymous or pseudonymous works,
of works considered under the legislation of a Member
State to have been created by a legal person and of Article 4
collective works, the term of protection shall run for 70
years after the work is lawfully made available to the 1 . When any of the terms referred to in Articles 1 to 3
public . However, when the pseudonym adopted by the begins to run in a Member State it shall be considered to
author leaves no doubt as to his identity, or if the author begin to run throughout the Community .
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 . 2 . Where the country of origin of a work, within the

Article 4

1 . When any of the terms referred to in Articles 1 to 3
begins to run in a Member State it shall be considered to
begin to run throughout the Community .

4 . Anonymous or pseudonymous works shall not be
protected if it is reasonable to presume that their author
has been dead for 70 years .

5 . 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 .

6 . In the case of collective works or works created by
a legal person, if publication as referred to in paragraph
3 has not taken place, the work shall be protected for 70
years from its creation .

Article 2

1 . The rights of performers shall run for 50 years
from the first publication of the fixation of the
performance or if there has been no publication of the
fixation, from the first dissemination of the performance .
However, they shall expire 50 years after the
performance if there has been no publication or dissemi ­
nation during that time .

2 . 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 .

3 . The terms of protection laid down in Article 2 shall
also apply in the case of rightholders who are not
Community nationals, provided Member States grant
them protection . However, 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 .

4 . Pending the conclusion of any future international
agreements on the term of protection by copyright or
related rights, the decision may be taken by means of the
procedure set out in Article 9 :

( a ) to waive or to vary the rule requiring a comparison

of the terms of protection in certain third countries
which is laid down in paragraphs 2 and 3,
particularly in order to prevent Member States from
being brought into conflict with their international
obligations ; in any event, however, the term granted
may not exceed that laid down in Articles 1 and 2 ;

11 . 4 . 92 Official Journal of the European Communities No C 92 / 9

( b ) to take appropriate measures where protection is

granted to third-country nationals by some Member
States only, and this fact causes appreciable
distortion of competition or deflection of trade in the
Community market .

Article 5

The terms laid down in this Directive shall run from the

first day of January of the year following the event
which gives rise to them .

Article 6

1 . This Directive shall apply to rights which have not
expired on or before 31 December 1994 . However, this
Directive shall not have the effect of shortening terms of
protection which under the laws of Member States are
already running .

2 . The moral rights granted to the author shall be
maintained at least until the expiry of the economic
rights .

Article 7

1 . Article 8 of Directive 91 / 250 / EEC is hereby
deleted .

2 . Articles 9 and 10 of Directive . . . are hereby
deleted .

Article 8

1 . Member States shall immediately notify the
Commission of any plan to grant new related rights,
indicating the grounds for their introduction and the
term of protection envisaged .

2 . Member States shall defer adoption of the plans
referred to in paragraph 1 for three months from the
date of notification to the Commission . This period shall
be extended to 12 months if, within three months of
notification, the Commission informs the Member State
that it intends to propose a Directive on the subject .

Article 9

The Commission shall be assisted by a committee of an

advisory nature composed of representatives of the
Member States and chaired by the representative of the
Commission .

The representative of the Commission shall submit to the
committee a draft of the measures to be taken . The
committee shall deliver its opinion on the draft, within a
time limit which the chairman may lay down according
to the urgency of the matter, if necessary by taking a

vote .

The opinion shall be recorded in the minutes ; in
addition, each Member State shall have the right to ask
to have its position recorded in the minutes .

The Commission shall take the utmost account of the
opinion delivered by the committee . It shall inform the
committee of the manner in which its opinion has been
taken into account .

Article 10

1 . Member States shall bring into force the laws,
regulations and administrative provisions necessary to
comply with Articles 1 to 7 of this Directive by 31
December 1992 .

When Member States adopt these provisions, these shall
contain a reference to this Directive or shall be accom ­
panied by such reference at the time of their official
publication . The procedure for such reference shall be
adopted by Member States .

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 .

2 . Member States shall apply Article 8 from the date
on which this Directive takes effect .

Article 11

This Directive is addressed to the Member States .