CELEX: 51991FC0250
Language: en
Date: 2007-02-06
Title: Proposal for a Directive …/…/EC of the European Parliament and of the Council of […] on the legal protection of computer programs (codified version)

EN

|[pic]                     |COMMISSION OF THE EUROPEAN COMMUNITIES                                                                           |

                                        Brussels,
                                        COM(2004)

                                                                  Proposal for a

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

                                                                      of […]

                                                   on the legal protection of computer programs

                                                                (Codified version)

                                                              EXPLANATORY MEMORANDUM

1.    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.

2.    On 1 April 1987 the Commission therefore decided[1] 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.

3.    The Conclusions of the Presidency of the Edinburgh  European  Council  (December 1992)  confirmed  this[2],  stressing  the  importance  of
       codification as it offers certainty as to the law applicable to a given matter at a given time.

       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.

4.    The purpose of this proposal is to undertake a codification of Council Directive 91/250/EEC of 14 May  1991  on  the  legal  protection  of
       computer programs[3]. The new Directive will supersede the various acts incorporated in it[4]; 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.

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.

                                            ê 91/250/EEC (adapted)

                                                                  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 Ö 95 Õ thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee[5],

Acting in accordance with the procedure laid down in Article 251 of the Treaty[6],

Whereas:

                                            ê 

   1) Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs[7] has been amended in its  substance[8].  In  the
      interests of clarity and rationality the said Directive should be codified.

                                            ê 91/250/EEC Recital 2

   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.

                                            ê 91/250/EEC Recital 3

   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.

                                            ê 91/250/EEC Recital 4 (adapted)

   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 Ö internal Õ market as regards computer programs .

                                            ê 91/250/EEC Recital 5 (adapted)

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

                                            ê 91/250/EEC Recital 6

   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  authorize  or  prohibit
      certain acts and for how long the protection should apply.

                                            ê 91/250/EEC Recital 7

   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.

                                            ê 91/250/EEC Recital 8

   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.

                                            ê 91/250/EEC Recital 9

   9) The Community is fully committed to the promotion of international standardization.

                                            ê 91/250/EEC Recital, 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.

                                            ê 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.

                                            ê 91/250/EEC Recital 16

  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.

                                            ê 91/250/EEC Recitals 17 and 18 (adapted)

  13) The exclusive rights of the author to prevent the unauthorized reproduction of his work Ö should Õ 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.

                                            ê 91/250/EEC Recital 19

  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.

                                            ê 91/250/EEC Recitals 20, 21, 22, 23 and 24 (adapted)

  15) 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. 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 authorization 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 rightholder or which conflicts with a normal exploitation of the program.

                                            ê 91/250/EEC Recital 25 (adapted)

  16) In accordance with the provisions of Ö Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of  copyright  and
      certain related rights[9] Õ, the term of protection should be the life of the author and Ö seventy Õ 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, Ö seventy Õ years from the first of  January  of
      the year following the year in which the work is Ö lawfully made available to the public Õ.

                                            ê 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 Ö the provisions of this Directive laid down in respect  of  decompilation Õ
      or to the exceptions provided for Ö 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 Õ should be null and void.

                                            ê 91/250/EEC Recital 27 (adapted)

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

                                            ê 91/250/EEC Recital 28

  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 standardization in  the  field  of  information
      technology and telecommunication.

                                            ê 91/250/EEC Recital 29

  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.

                                            ê 

  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,

                                            ê 91/250/EEC

HAVE ADOPTED THIS DIRECTIVE:

                                                                    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.

                                            ê 91/250/EEC (adapted)

Ö 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. Õ

                                            ê 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 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.

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 authorize:

(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
       authorization by the rightholder;

(b)   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;

(c)   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  authorization  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 authorization 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 authorization 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)   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 readily 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.

2. The provisions of paragraph 1 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 computer program;

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

(c)   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

                                            ê 91/250/EEC (adapted)

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 Ö following Õ acts :

                                            ê 91/250/EEC

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

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

(c)   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 unauthorized 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).

                                                                    Article 8

                                                 Continued application of other legal provisions

ê 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.

                                                                    Article 9

Ö Communication Õ

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

                                            ê 

                                                                    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.

                                                                    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.

                                            ê 91/250/EEC (adapted)

                                                                    Article 12

                                                                  Ö Addressees Õ

                                            ê 91/250/EEC

This Directive is addressed to the Member States.

Done at Brussels, […]

For the European Parliament  For the Council
The President    The President
[…]   […]

                                            é

                                                                     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                                          |Article 11(1) only                                          |
|(OJ L 290, 24.11.1993, p. 9)                                         |                                                            |

                                                                      Part B

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

|Directive                                                       |Time-limit for transposition                                    |
|91/250/EEC                                                      |31 December 1992                                                |
|93/98/EEC                                                       |30 June 1995                                                    |

                                                                  _____________

                                                                     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(1)(a)                                                         |
|Article 4(b)                                                            |Article 4(1)(b)                                                         |
|Article 4(c), first sentence                                            |Article 4(1)(c)                                                         |
|Article 4(c), second sentence                                           |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 1(4)                                                            |
|Article 10(1)                                                           |-                                                                       |
|Article 10(2)                                                           |Article 9                                                               |
|-                                                                       |Article 10                                                              |
|-                                                                       |Article 11                                                              |
|Article 11                                                              |Article 12                                                              |
|-                                                                       |Annex I                                                                 |
|-                                                                       |Annex II                                                                |

                                                                  _____________

                                                             -----------------------
[1]   COM(87) 868 PV.
[2]   See Annex 3 to Part A of the Conclusions.
[3]   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.
[4]   See Annex I, Part A of this proposal.
[5]   OJ C […], […], p. […].
[6]   OJ C […], […], p. […].
[7]   OJ L 122, 17.5.1991, p. 42. Directive as amended by Council Directive 93/98/EEC (OJ L 290, 24.11.1993, p. 9).
[8]   See Annex I, Part A.
[9]   OJ L 290, 24.11.1993, p. 9.