Source: EURLEX
Language: en
Format: md

No C 329/4 Official Journal of the European Communities 30. 12. 89

Opinion on the proposal for a Council Directive on the legal protection of computer

programs^)

(89/C 329/02)

On 23 January 1989, the Council decided, in accordance with Article 100 A of the Treaty
establishing the European Economic Community, to consult the Economic and Social Committee on the abovementioned proposal.

The Section for Industry, Commerce, Crafts and Services was instructed to prepare the work
on this topic and adopted its Opinion on 4 October 1989. The Rapporteur was Mr Moreland.

The Economic and Social Committee, at its 270th plenary session, meeting on 18 October
1989, adopted unanimously the following Opinion.

1. Summary of the Commission's proposal

1.1. The draft Directive introduces into Community
law the concept of the protection of computer programs
through the law of copyright. This concept already
exists in the law of several Member States. The proposal
does not introduce a specific law but rather proposes
that Member States should accord computer programs
the same copyright protection that they accord to literary works. In addition the term of protection is to be
50 years from the date of creation of the program.

1.2. However, the proposal goes on to exempt from
protection 'ideas, principles, logic, algorithms or programming language underlying the program'. It also
makes lawful the use by the public of programs in nonprofit making public libraries.

1.3. The proposal gives rights to the commissioner
of programs rather than the creator and to the employer
rather than the employee (unless otherwise provided by
contract).

2. General comments

2.1. The Committee welcomes the Commission's

proposal as a means of ensuring appropriate copyright
protection for the Community's computer and software
industry and in eliminating barriers to trade in the
Community.

The Committee recognizes that absolute precision in
the wording is extremely difficult for the first draft of
a directive on this complex subject. It believes that a
number of drafting changes are required as specified
under part 3. That detailed changes are in some places
recommended should not detract from the Committee's

overall approval of the draft.

2.2. The Committee believes that the Commission's

approach has two significant advantages :

(!) OJNoC91, 12.4. 1989.

1. In according computer programs the same protection as literary works use can be made of a 'ready
made' copyright law. The lengthy process of adaptation
and development of the new law that a 'sui generis'
approach would bring is avoided.

2. The approach is intended to bring computer programs within the definition of 'literary works' in the
Berne convention (this could be made more explicit in
the directive). The advantage of this approach is that
it encourages States outside the Community to treat
Community programs as copyright works entitled to
the protection of the law.

Indeed, the more closely Community law is assimilated
to the Berne convention the greater this advantage
becomes. If the Member States are all in closer harmony
with the Berne convention then, in the opinion of the
Committee, the ability of the Member States to influence the forthcoming discussions on the revision of the
convention will be enhanced.

The Committee recognizes that clauses designed for the
purposes of 'literary works' the Berne convention may
not be entirely appropriate for 'computer programs'
and that rules to take account of their specific characteristics will be needed.

Nevertheless the Committee stresses the importance of
being as close to the Berne convention as possible.

2.3. One matter of concern, however, is that the
proposal still leaves open the possibility of the continuation of barriers to the free movement of computer
programs within the Community through, for example,
the co-existence of different definitions of 'originality'
in Member States' laws.

2.4. The Committee believes that the Commission's

proposal will not restrict the spread and understanding
of information technology. However, it stresses the
importance of ensuring that no undesirable restrictions
exist through the enforcement of the competition provisions of the Treaty.

2.5. The Committee supports the need to ensure that
computer programs receive adequate protection and
believes that there are clear advantages in the establishment of a copyright law regulating the protection of
computer programs in Community legislation.

30. 12. 89 Official Journal of the European Communities No C 329/5

2.6. Consequently the Committee welcomes the proposal from the Commission, subject to the following
specific comments.

3. Specific comments

3.1. _Preamble: Eighth recital_

3.1.1. It should be made clear whether the 'interfaces'

referred to in this recital are the interfaces themselves,
or the specifications for those interfaces.

3.1.2. There is no dispute that 'ideas and principles'
are outside the protection of the law of copyright. It
is, therefore, superfluous to state that the ideas and
principles behind the interfaces are 'not copyrightable
subject matter', because ideas and principles behind any
program are 'not copyrightable subject matter'.

3.1.3. To take these two points into account, the
whole recital could be deleted in its entirety without
affecting the substance of the proposal. Alternatively,
the recital could be amended to read as follows:

'Whereas 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. Any such means of
interconnection and interaction are generally
known as 'interfaces'. Interfaces are protectable in
the same way as any other copyright computer
program.'

3.2. _Preamble: Ninth recital_

In view of the importance of the.international copyright
conventions to the means of protection chosen for
programs which are eligible for copyright protection it
might be useful _to_ add to the end of this recital

'... and to the principle of compliance by each
Member State to the provisions of the International
Convention for the Protection of Literary and Artistic Works (the Berne convention).'

_33._ _Article 1_ — _Object of_ _protection_

3.3.1. A r t i c l e 1 : P a r a g r a p h 2

As stated in part 2 above, the Committee considers
that the protection of computer programs through the
medium of the 'literary works' provisions of the Berne

convention should be explicitly referred to in the draft.
Therefore the paragraph should conclude with the
words:

'in the context of the Berne convention'.

3.3.2. A r t i c l e 1: P a r a g r a p h 3

3.3.2.1. The Committee supports the exclusion of
ideas and principles from copyright protection as computer programs.

3.3.2.2. 'Logic' and 'algorithms' are not clear terms
and are frequently interchangeable. In any event, in the
current state of technology and of Member States'
legislation, few would argue that 'logic', 'algorithms'
and 'programming languages' are within a definition of
'computer programme'. Consequently specific reference
in this article to these terms as requiring exclusion from
protection only serves to confuse and cause unnecessary
debate. Consequently the Committee believes they
should be removed.

3.3.2.3. As has been stated above, it is not in dispute
that 'ideas and principles' are not susceptible of copyright protection. It is superfluous here, just as in the
preamble, to state that the ideas and principles behind
the interfaces are 'not copyrightable subject matter'.
The second sentence could be deleted. The Committee

understands and supports the concern that the proprietors of the copyright in interfaces may exercise their
rights in an anti-competitive matter. The Committee,
however, remains convinced that the second sentence
of Article 1.3. adds nothing to the control of anticompetitive practices which it is the clear responsibility
of the Commission to enforce through the Competition
rules of the Community.

3.3.2.4. The paragraph could therefore read as fol
lows:

'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 or principles which underlie the program.'

3.3.3. A r t i c l e 1 : P a r a g r a p h 4

3.3.3.1. The Commission does not define 'originality'. As the interpretation of this word in law differs
from Member State to Member State, this clause does
not harmonize anything. Hence, the continued existence
of different degrees of originality in different Member
States could act as a barrier to trade in computer
programs between Member States.

No C 329/6 Official Journal of the European Communities 30. 12. 89

3.3.3.2. The Committee recognizes that this problem
of 'originality' is not unique to the law of copyright in
computer programs and extends to many more aspects
of copyright. However, it stresses that failure to address
the problem in the first attempts to harmonize the law
of copyright will only perpetuate a barrier to trade in
the Community and simply delay a solution.

3.3.3.3. The Committee believes that any clause
defining 'originality' should incorporate the following:

3.3.3.3.1. There should be no requirement that the
program meets aesthetic, qualitative or quantitative
criteria.

3.3.3.3.2. There should be no requirement of level
of programming expertise.

3.3.3.3.3. The test for originality should be that to
the extent the programe has not been copied from
another program it should be protected.

3.3.3.4. If, for any reason, it is decided not to have
a definition of originality then paragraph 4(a) would
be better drafted if it were expressed positively rather
than negatively, and the following is suggested:

'A computer program shall be protected if it satisfies
the same conditions as regards its originality as
apply to any other literary work.'

3.4. _Article 2_ — _Authorship_ _of program_

3.4.1. A r t i c l e 2 : P a r a g r a p h 3

3.4.1.1. It is questionable whether the draft complies
with the 'moral rights' provisions of the Berne convention. Nevertheless, these provisions are more relevant
to the more traditional forms of literary works copyright, not to computer programs.

3.4.1.2. It is for this reason that the Committee supports this paragraph as drafted. The Committee believes
that it is right that the first owner of the copyright in
commissioned works should be the person who has
ordered and paid for them. There is a difference
between computer programs and any other sort of
literary work. The concepts that have made Member
States' legislatures reluctant to vest the copyright in
commissioned works in the commissioner, rather than
the commissionee apply to more traditional forms of
literary work. Furthermore, invariably these matters
are covered expressly in a contract between commissioner and commissionee, especially where the commissionee is concerned about the intellectual property
rights in the program commissioned.

3.4.2. A r t i c l e 2 : P a r a g r a p h 4

The Committee supports the principle of this paragraph, but, for the sake of clarity, proposes that it be
reworded as follows:

'Where a computer program is created in the course
of employment and it is part of the employee's job
to create the program, the employer shall be entitled
to exercise all rights in respect of the program
unless otherwise provided by contract or by legally
enforceable collective bargaining agreement.'

3.4.3. A r t i c l e 2 : P a r a g r a p h 5

The Committee believes that it is important to protect
the rights of the owner of the copyright in the program
which generates the subsequent program. For that
reason, the Committee suggests the following changes
of wording:

Add after 'contract':

'This Article does not affect the copyright in the
computer program which generates the subsequent
programs.'

_3.5. Article 4_ — _Restricted_ _acts_

3.5.1. A r t i c l e 4 ( a )

'Viewing' a program is difficult to define technically,
and should be replaced by 'displaying'.

3.5.2. A r t i c l e 4 ( b )

In order to conform as closely as possibly to the Berne
convention, the Committee proposes that 4(b) reads:

'The adaptation, translation, modification and
arrangement of a computer program and the reproduction of such adaptation, translation, modification or arrangement'.

Although the Commission has avoided including definitions in this Directive, the word 'adaptation' is open
to various interpretations and a definition in the Directive may be necessary.

3.5.3. A r t i c l e 4(c)

3.5.3.1. Although the media upon which a computer
program is carried can be 'sold' it is inappropriate to
use the word 'sale' of computer programs themselves.

3.5.3.2. The Commission has not placed any geographical restriction on exhaustion rights (such as a
restriction to the Community). Whatever the merits of

30. 12. 89 Official Journal of the European Communities No C 329/7

a geographical restriction the Committee considers this
a matter of trade and not copyright legislation, i.e.
Community copyright law would not be an appropriate
vehicle to prohibit parallel importing from outside the
Community. Consequently the Committee supports the
objective of this clause which makes clear in terms of
copyright law that the position of EC individuals and
companies taking licences of programs from copyright
proprietors outside the Community is protected. However, the whole question of parallel importing of computer programs from outside the Community deserves
further study by the Commission.

3.5.3.3. The word 'marketing' is difficult to define
accurately. The Committee proposes certain changes to
the drafting of 4(c) to overcome this difficulty.

3.5.4. R e d r a f t of A r t i c l e 4

It is therefore proposed that Article 4 should read as
follows:

'Subject to the provisions of Article 5, the exclusive
rights referred to in Article 1 shall include the right
to do or to authorize:

the reproduction of a computer program by any
means and in any form, in part or in whole.
Insofar as they necessitate a reproduction of the
program in part or in whole, loading, displaying,
running transmission or storage of the computer
program shall be considered restricted acts;

b) the adaptation, translation, modification and
arrangement of a computer program and the
reproduction of such adaptation, translation,
modification or arrangement of a computer pro
gram;

the distribution of copies of a computer program
by means of licensing, sale, lease, rental and the
importation for these purposes. The right to
control the distribution of a copy of a program
shall be exhausted in respect of the sale or
importation of that copy following the first sale
of that copy to any person by the rightholder or
with his consent.'

(Plus a possible clause defining 'adaptation')

3.6. _Article 5_ — _Exceptions_ _to the restricted acts_

3.6.1. A r t i c l e 5 : P a r a g r a p h 1

3.6.1.1. The paragraph needs more precise drafting.
There are many ways of licensing computer programs

which do not involve the signature of a written agreement by both parties. There will be fewer such written
agreements as technology develops. The Committee
proposes that the reference to written agreement signed
by the parties be deleted and replaced by the words
'any valid licence agreement'; further the words 'acts
enumerated in Article 4(a) and (b) above' should be
replaced by the more limited 'reproduction by loading,
displaying, running, transmission or storage'. Further,
the present text does not address the question of whether parallel processing of such a program is permitted.
Accordingly, the Committee recommends the addition
of the following after '...the use of the program':

.on one processor by one user at any one time'.

3.6.1.2. The Commission should also consider

including the right to make backup copies of a program
as one of the general rights of the user.

The following text is suggested:

'(a) The copyright in a computer program is not
infringed by the making of a reproduction of
the program, or of a computer program being
an adaptation of that program, if:

(i) the reproduction is made by, or on behalf
of, the owner of the copy (the 'original
copy') from which the reproduction is
made; and

(ii) the reproduction is made for the purpose
only of ensuring that another copy of the
program may be used by the owner of the
original copy if one copy of the program
is lost, destroyed or rendered unusable.

(b) Sub-clause (a) above does not apply if:

(i) there is a clear statement in writing upon
the original copy or upon any media or
packaging in or with which it is supplied
that the right to make backup copies is
excluded or if the media upon which the
original copy is supplied are not such as
would in normal use be lost, destroyed or
rendered unusable, or

(ii) there is a legally valid agreement to the
contrary'.

3.6.2. A r t i c l e 5 : P a r a g r a p h 2

The Committee proposes that, for the sake of clarity,
the paragraph should read:

No C 329/8 Official Journal of the European Communities 30. 12. 89

'Where a copy of a computer program has been
sold or made available to the public by means other
than a valid licence agreement, the exclusive right
of the rightholder to authorize rental shall not be
exercised to prevent the use as reference material of
that copy of the program by the public on the
premises of non-profit making organizations which
make available programs as reference material for
the public, such as public libraries.'

3.7. _Article 6_ — _Secondary_ _infringement_

The Commission should examine the translation in

various languages of the word 'infringement' to make
sure that no criminal sanctions are necessarily implied.

3.8. _Article 7 - Term of_ _protection_

3.8.1. The Article lays down a term which differs
from the term of protection prescribed in the Berne
convention because, as the Commission states in its
explanatory memorandum, 'attaching the term of protection to the life of a human author might cause some
hesitations in the light of joint authorship of computergenerated works and the length of term which will
result'. As the life of a computer program is invariably
far shorter than 50 years, this concern of the Commission's is academic and should not be allowed to

weigh against the need to adhere to the provisions of
Berne as closely as possible. The same argument applies
to any suggestion of any other period of years, e.g. 25
or 30. The Committee must emphasize the advantage of
adhering closely to the Berne convention. Consequently,
the Article should in the Committee's view read as

follows:

'The term of protection under this Article shall be
the life of the author (or, if there is more than one
author, the life of the last author to die) plus fifty
years. The term of protection for a computer generated work shall be fifty years from the date upon
which it was generated.'

The Convention permits 'at least 50 years'. Nevertheless, to use such wording would invite Member States
to impose different terms of protection, i.e. further
barriers to trade. In any event use of 50 years clearly
complies with the Berne convention.

3.8.2. If the Commission is also concerned that the

wording of the Berne convention may be changed at
some time in the future so that the term will be fifty
years 'from the date of creation', then the Committee
still maintains its view that Berne as it is now drafted

should be complied with (so far as possible) until it
is altered, at which point the Commission could put
forward a proposal to alter the wording of the Directive.

However, agreeing to this position now does not mean
a commitment to maintain the principles behind this
clause at meetings to revise the Berne convention.

3.8.3. Although the number of programs to which
this would apply is minimal, the Committee considers
that in order to comply as closely as possible with the
Berne convention (and particularly Article 7(3) thereof)
the following should be inserted (the existing clause 7
becoming clause 7.1.):

'2. In the case of anonymous or pseudonymous
works, the terms of protection shall expire fifty
years after copies of the program have been lawfully
made available to the public. However, when the
pseudonym adopted by the author leaves no doubt
as to his identity, 7.1. above applies. If the author
of an anonymous or pseudonymous work discloses
his identity during the said fifty years, 7.1. shall also
apply.'

3.9. _Article 8_ — _Continued_ _application_ _of other legal_
_provisions_

The Committee considers that the drafting would be
clearer if

a) to be consistent with the Directive on the protection
of semi-conductor topography—the phrase: 'insofar ... Directive' were deleted; or

b) Article 8.1 were replaced by:

'Legal protection for computer programs provided
in addition to the law of copyright is not affected
by this Directive.'

3.10. _Article 9_ — _Final_ _provisions_

The latest date to be filled in this Article should of

course be 1 January 1993 and the Committee hopes
that the Council can set an earlier date.

In any event the Committee would emphasize the
importance of a Council decision on this Directive as
soon as, possible so that the Member States have a clear
and common position for negotiations to revise the
Berne convention.

30. 12. 89 Official Journal of the European Communities No C 329/9

4. Further comments

4.1. While welcoming this proposal from the Commission, the Committee believes that there are other
issues in the Green Paper on copyright that also require
legislative proposals and looks forward to receiving
these proposals, so that a clear position is established
by 1 January 1993 of the Community's position on the
whole law of copyright.

4.2. The Committee believes the effect of this legislation in terms of both the impact on the computer and
software industry and on the development of information technology should be regularly assessed by the
Commission, particularly when any changes in Community legislation is envisaged as a result of changes

Done at Brussels, 18 October 1989.

in the Berne convention, and the Commission should
consider giving a regular report on the effect of this
legislation to the Council, the European Parliament and
the Economic and Social Committee.

4.3. It is clear that there is a serious problem across
the Community of unauthorized access to computer
programs and data ('hacking'). There is also the problem of 'viruses', that is to say, the unlawful insertion
of matter into computer programs which impairs their
function. Of course, these are not issues of copyright
as such but they are issues which affect the use of
computer technology and have implications for the
regulation of the single market. The Committee recommends that the Commission give these issues serious
examination with a view to making legislative proposals.

_The_ _Chairman_

_of the Economic and Social_ _Committee_

Alberto MASPRONE