CELEX: 51992PC0033
Language: en
Date: 1992-03-23
Title: Proposal for a COUNCIL DIRECTIVE harmonizing the term of protection

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 ;
 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                  Whereas for the protection of related rights certain
become party to the Rome Convention ;                                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 ;
 ---pagebreak---  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
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 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 the terms of protection laid down in this
Whereas these terms should be calculated from the first             Directive should also apply to literary and artistic works
day of January of the year following the relevant event,            whose country of origin within the meaning of the Berne
as they are in the Berne and Rome Conventions ;                     Convention is'a third country, but protection should not
                                                                    exceed that fixed in the country of origin of the work ;
Whereas Article 1 of Council Directive 91 /250 /EEC of
14 May 1991 on the legal protection of computer                     Whereas, where a rightholder who is not a Community
programs (2) provides that Member States are to protect             national qualifies for protection under an international
computer programs, by copyright, as literary works                  agreement, the term of protection of related rights
within the meaning of the Berne Convention (Paris Act,              should be the same as that laid down in this Directive,
1971 ); whereas the present Directive harmonizes the                except that it should not exceed that fixed in the country
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 of protection of computer programs , should
accordingly be repealed ;                                           Whereas this provision must not be allowed to bring
                                                                    Member States into conflict with their international 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 ;
 ---pagebreak---   No C 92 / 8                           Official Journal of the European Communities                                  11 . 4 . 92
  Whereas rightholders should be able to enjoy the longer          2. The rights of producers of phonograms shall run
  terms of protection introduced by this Directive equally         for 50 years from the first publication of the phonogram.
  throughout the Community provided their rights have              However, they shall expire 50 years after the fixation
  not yet expired on 31 December 1994,                             was made if the phonogram has not been published
                                                                   during that time.
  HAS ADOPTED THIS DIRECTIVE :
                                                                   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
                           Article 1                               expire 50 years after the first publication . However, they
                                                                   shall expire 50 years after the fixation was made if the
  1 . The rights of an author of a literary or artistic            work or sequence of moving images has not been
 work within the meaning of Article 2 of the Berne                 published during that time .
 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 .                   4 . The rights of broadcasting organizations shall run
                                                                   for 50 years from the first transmission of a broadcast.
 2 . In the case of a work of joint authorship the term
 referred to in paragraph 1 shall be calculated from the                                     Article 3
 death of the last surviving author.
                                                                   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
                                                                  meaning of the Berne Convention, is a third country,
                                                                  and the author of the work is not a Community national,
 4 . Anonymous or pseudonymous works shall not be                 the term of protection granted by the Member States
protected if it is reasonable to presume that their author        shall expire on the date of expiry of the protection
 has been dead for 70 years .                                     granted in the country of origin of the work, but may
                                                                  not exceed the term laid down in Article 1 .
5 . Where a work is published in volumes, parts ,
instalments , issues or episodes and the term of protection       3 . The terms of protection laid down in Article 2 shall
runs from the time when the work was lawfully made                also apply in the case of rightholders who are not
available to the public, the term of protection shall run         Community nationals , provided Member States grant
for each such item separately.                                    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 .
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         4 . Pending the conclusion of any future international
years from its creation .                                         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 :
                           Article 2
1 . The rights of performers shall run for 50 years               (a) to waive or to vary the rule requiring a comparison
from the first publication of the fixation of the                      of the terms of protection in certain third countries
performance or if there has been no publication of the                 which is laid down in paragraphs 2 and 3 ,
fixation, from the first dissemination of the performance .            particularly in order to prevent Member States from
However, they shall expire 50 years after the                          being brought into conflict with their international
performance if there has been no publication or dissemi­               obligations ; in any event, however, the term granted
nation during that time .                                              may not exceed that laid down in Articles 1 and 2 ;
 ---pagebreak---  11 . 4 . 92                           Official Journal of the European Communities                             No C 92 / 9
(b) to take appropriate measures where protection is                                      Article 9
      granted to third-country nationals by some Member
      States only, and this fact causes appreciable              The Commission shall be assisted by a committee of an
      distortion of competition or deflection of trade in the    advisory nature composed of representatives of the
      Community market .                                         Member States and chaired by the representative of the
                                                                 Commission .
                          Article 5                              The representative of the Commission shall submit to the
The terms laid down in this Directive shall run from the
                                                                 committee a draft of the measures to be taken . The
first day of January of the year following the event             committee shall deliver its opinion on the draft, within a
which gives rise to them .                                       time limit which the chairman may lay down according
                                                                 to the urgency of the matter, if necessary by taking a
                                                                 vote .
                          Article 6
                                                                 The opinion shall be recorded in the minutes ; in
 1 . This Directive shall apply to rights which have not
expired on or before 31 December 1994 . However, this
                                                                 addition, each Member State shall have the right to ask
                                                                 to have its position recorded in the minutes.
Directive shall not have the effect of shortening terms of
protection which under the laws of Member States are             The Commission shall take the utmost account of the
already running.                                                 opinion delivered by the committee . It shall inform the
                                                                 committee of the manner in which its opinion has been
2 . The moral rights granted to the author shall be              taken into account.
maintained at least until the expiry of the economic
rights .                                                                                 Article 10
                          Article 7                               1 . Member States shall bring into force the laws ,
                                                                 regulations and administrative provisions necessary to
 1.      Article 8 of Directive 91 /250 /EEC is hereby           comply with Articles 1 to 7 of this Directive by 31
deleted .                                                        December 1992 .
2.       Articles 9 and 10 of Directive . . . are hereby         When Member States adopt these provisions, these shall
deleted .                                                        contain a reference to this Directive or shall be accom­
                                                                 panied by such reference at the time of their official
                          Article 8                              publication . The procedure for such reference shall be
                                                                 adopted by Member States .
1 . Member States shall immediately notify the
Commission of any plan to grant new related rights,              Member States shall communicate to the Commission
indicating the grounds for their introduction and the            the texts of the provisions of national law which they
term of protection envisaged .                                   adopt in the field governed by this Directive.
2 . Member States shall defer adoption of the plans              2.     Member States shall apply Article 8 from the date
referred to in paragraph 1 for three months from the             on which this Directive takes effect.
date of notification to the Commission . This period shall
be extended to 12 months if, within three months of                                      Article 11
notification , the Commission informs the Member State
that it intends to propose a Directive on the subject.           This Directive is addressed to the Member States .