CELEX: 51990PC0509
Language: en
Date: 1990-10-18
Title: AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE ON THE LEGAL PROTECTION OF COMPUTER PROGRAMS

No C 320/22                          Official Journal of the European Communities                           20. 12. 90
                                                            II
                                                     (Preparatory Acts)
                                               COMMISSION
                Amended proposal for a Council Directive on the legal protection of computer programs
                                             COM(90) 509 final — SYN 183
             (Submitted by the Commission pursuant to Article 149 (3) of the EEC Treaty on 18 October 1990)
                                                      (90/C 320/11)
                    ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                         THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European            Unchanged
Economic Community and in particular Article 100a
thereof,
Having regard to the proposal from the Commission,               Unchanged
In cooperation with the European Parliament,                     Unchanged
Having regard to the opinion of the Economic and                 Unchanged
Social Committee,
Whereas computer programs are at present not clearly
                                                                 Unchanged
protected in all Member States by existing legislation and
such protection, where it exists, has different attributes;
Whereas the development of computer programs requires
                                                                 Unchanged
the investment of considerable human, technical and
financial resources while computer programs can be
copied at a fraction of the cost needed to develop them
independently;
Whereas computer programs are playing an increasingly            Unchanged
important role in a broad range of industries and
computer program technology can accordingly be
considered as being of fundamental importance for the
Community's industrial development;
Whereas certain differences in the legal protection of           Unchanged
computer program offered by the laws of the Member
States have direct and negative effects on the functioning
of the common market as regards computer programs
and such differences could well become greater as
 Member States introduce new legislation on this subject;
Whereas existing differences having such effects need to         Unchanged
be removed and new ones prevented from arising, while
differences not adversely affecting the functioning of the
common market to a substantial degree need not be
removed or prevented from arising;
 ---pagebreak--- 20. 12. 90                            Official Journal of the European Communities                             No C 320/23
                     ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
Whereas the Community's legal framework on the                  Unchanged
protection of computer programs can accordingly in the
first instance be limited to establishing that Member
States should accord protection to computer programs
under copyright law as literary works and further in
establishing who and what should be protected, the
exclusive rights on which protected persons should be
able to rely in order to authorize or prohibit certain acts,
and for how long the protection should apply;
                                                                Whereas for the purpose of this Directive the term
                                                                'computer program' shall include programs in any form,
                                                                including those which are incorporated into hardware;
                                                                whereas this term also includes preparatory design work
                                                                leading to the development of a computer program
                                                                provided that the nature of the preparatory work is such
                                                                that a computer program can result from it at a later
                                                                stage;
                                                                Whereas in respect of the criteria to be applied in deter-
                                                                mining whether or not a computer program is an original
                                                                work, no tests as to the qualitive or aesthetic merits of
                                                                the program should be applied;
Whereas the Community is fully committed to the                 Unchanged
promotion of international standardization;
Whereas the function of a computer program is to                Unchanged
communicate and work together with other components
of a computer system and with users and for this purpose
a logical and where appropriate physical interconnection
and interaction is required to permit all elements of
software and hardware to work with other software and
hardware and with users in all the ways they are
intended to function:
The principles describing any such means of intercon-           Whereas the parts of the program which provide for
nection and interaction are generally known as 'an              such interconnection and interaction between elements
interface'. Where the specification of interfaces               of software and hardware are generally known as
constitutes ideas and principles which underlie the             'interfaces'.
program, those ideas and principles are not copyrightable
subject matter.
                                                                Whereas this functional interconnection and interaction
                                                                 is generally known as 'interoperability'; whereas such
                                                                 interoperability can be defined as the ability to exchange
                                                                 information and to mutually use the information which
                                                                 has been exchanged;
                                                                 Whereas for the avoidance of doubt it has to be made
                                                                 clear that only the expression of a computer program is
                                                                 protected and that ideas and principles which underlie
                                                                 any element of a program, including those which
                                                                 underlie its interfaces, are not protected by copyright
                                                                 under this Directive;
                                                                 Whereas in accordance with this principle of copyright,
                                                                 to the extent that logic, algorithms and programming
                                                                 languages comprise ideas and principles, those ideas and
                                                                 principles are not protected under this Directive;
 ---pagebreak--- No C 320/24                       Official Journal of the European Communities                               20. 12. 90
                  ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
                                                            Whereas,   in accordance with the legislation and juris-
                                                            prudence   of the Member States and the international
                                                            copyright  conventions, the expression of those ideas and
                                                            principles is to be protected by copyright.
                                                            Whereas the exclusive rights of the author to prevent the
                                                            unauthorized reproduction of his work have to be
                                                            subject to a limited exception in the case of a computer
                                                            program to allow the reproduction technically necessary
                                                            for the use of that program by its lawful acquirer;
                                                            Whereas a person having a right to use a computer
                                                            program should not be prevented from performing acts
                                                            necessary to observe, study or test the functioning of the
                                                            program provided that these acts do not infringe the
                                                            copyright in the program;
                                                            Whereas the unauthorized reproduction, translation,
                                                            adaptation or transformation of the form of the code in
                                                            which a copy of a computer program has been made
                                                            available constitutes an infringement of the exclusive
                                                            rights of the author;
                                                            Whereas, nevertheless, circumstances may exist when
                                                            such a reproduction of the code and translation of its
                                                            form are indispensable to obtain the necessary infor-
                                                            mation to ensure that a new interoperable program can
                                                            be created or can function;
                                                            Whereas it has therefore to be considered that in these
                                                            limited circumstances, performance of the acts of repro-
                                                            duction and translation by or on behalf of a person
                                                            having a right to use a copy of the program is legitimate
                                                            and compatible with fair practice, and must therefore
                                                            be deemed not to require the authorization of the
                                                            rightholder;
                                                            Whereas such an exception to the author's exclusive
                                                            rights may not be applied in a way which prejudices the
                                                            legitimate interests of the rightholder, or which conflicts
                                                            with a normal exploitation of the program;
                                                            Whereas in order to remain in accordance with the
                                                            provisions of the Berne Convention for the Protection of
                                                            Literary and Artistic Works, the term of protection
                                                            should be the life of the author and 50 years from the
                                                            first of January of the year following the year of his
                                                            death, or in the case of an anonymous or pseudonymous
                                                            work, 50 years from the first of January of the year
                                                            following the year in which the work is first published;
Whereas protection of computer programs under               Unchanged
copyright laws should be without prejudice to the
application in appropriate cases of other forms of
protecton;
                                                            Whereas the provisions of this Directive are without
                                                            prejudice to the application of the competition rules
                                                            under Articles 85 and 86 of the EEC Treaty if a
                                                            dominant supplier refuses to make information available
                                                            which is necessary for interoperability as defined in this
                                                            Directive;
 ---pagebreak--- 20. 12. 90                             Official Journal of the European Communities                          No C 320/25
                       ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
                                                                 Whereas the provisions of this Directive should be
                                                                 without prejudice to specific requirements of Community
                                                                 law already enacted in respect of the publication of
                                                                 interfaces in the telecommunication sector or Decisions
                                                                 of the Council relating to standardization in the field of
                                                                 information technology and telecommunication;
HAS ADOPTED THIS DIRECTIVE:                                      HAS ADOPTED THIS DIRECTIVE:
                          CHAPTER I                                                       CHAPTER I
                            Article 1                                                       Article 1
                     Object of protection                                           Object of protection
1.    Member States shall protect computer programs by           1.    In accordance with the provisions of this Directive
conferring exclusive rights in accordance with the               Member States shall protect computer programs, by
provisions of this Directive.                                    copyright, as literary works within the meaning of the
                                                                 Berne Convention for the Protection of Literary and
2.    Exclusive rights shall be conferred by the provisions      Artistic Works. For the purposes of this Directive the
of copyright laws. Protection shall be accorded to               term 'computer programs' shall include their preparatory
computer programs as literary works.                             design material.
3.    Protection in accordance with this Directive shall         2.    Protection in accordance with this Directive shall
apply to the expression in any form of a computer                apply to the expression in any form of a computer
program but shall not extend to the ideas, principles,           program. Ideas and principles which underlie any
logic, algorithms or programming languages underlying            element of a computer program, including those which
the program. Where the specification of interfaces               underlie its interfaces, are not protected by copyright
constitutes ideas and principles which underlie the              under this Directive.
program, those ideas and principles are not copyrightable
subject matter.
4. (a) A computer program shall not be protected unless          3.    A computer program shall be protected if it is
       it satisfies the same conditions as regards its origi-    original in the sense that it is the author's own intel-
       nality as apply to other literary works.                  lectual creation. No other criteria shall be applied to
                                                                 determine its eligibility for protection.
   (b) Programs generated by means of a computer shall           Deleted
       be protected insofar as they satisfy the conditions
       laid down in 4 (a) above.
                           Article 2                                                       Article 2
                   Authorship of programs                                         Authorship of programs
1.    Subject to the following paragraphs, the author of a       1.    The author of a computer program shall be the
computer program is the natural person or group of               natural person or group of natural persons who has
natural persons who has created the program.                     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.
 ---pagebreak--- No C 320/26                            Official Journal of the European Communities                                20. 12. 90
                      ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
2.     In respect of computer programs created by a              Unchanged
group of natural persons, the exclusive rights shall be
exercised in common unless otherwise provided by
contract.
3.     Where a computer program is created under a               Unchanged
contract, the natural or legal person who commissioned
the program shall be entitled to exercise all rights in
respect of the program, unless otherwise provided by
contract.
4.     Where a computer program is created in the course         4.    Where a computer program is created by an
of employment, the employer shall be entitled to exercise        employee in the execution of his duties or following the
all rights in respect of the program, unless otherwise           instructions given by his employer, the employer shall be
provided by contract.                                            entitled to exercise all economic rights in the program so
                                                                 created, unless otherwise provided by contract.
5.     In respect of programs which are generated by the         Deleted
use of a computer program, the natural or legal person
who causes the generation of subsequent programs shall
be entitled to exercise all rights in respect of the
programs, unless otherwise provided by contract.
                          Article 3                                                        Article 3
                 Beneficiaries of protection                                     Beneficiaries of protection
1.    Protection shall be granted to all natural or legal        Unchanged
persons eligible under national copyright legislation as
applied to literary works.
2.    In the case referred to in Article 2 (2) the computer      Unchanged
program shall be protected in favour of all authors if at
least one author is a beneficiary of protection in
accordance with paragraph 1 of this Article.
                          Article 4                                                        Article 4
                       Restricted acts                                                  Restricted acts
Subject to the provisions of Article 5, the exclusive rights     Subject to the provisions of Article 5, the exclusive rights
referred to in Article 1 shall include the right to do or        of the author shall include the right to do or to
authorize:                                                       authorize:
(a) the reproduction of a computer program by any                (a) the reproduction of a computer program by any
     means and in any form, in part or in whole. In so far            means and in any form, in part or in whole, and for
     as they necessitate a reproduction of the program in            whatever purpose. In so far as they necessitate a
    part or in whole, loading, viewing, running, trans-              permanent or temporary reproduction of the
     mission or storage of the computer program shall be             program, loading, displaying, running, transmission
     considered restricted acts;                                     or storage of the computer program shall be subject
                                                                     to authorization by the rightholder;
(b) the adaptation of a computer program;                        (b) the translation, adaptation, arrangement and any
                                                                      other alteration of a computer program and the
                                                                     reproduction of the results thereof;
 ---pagebreak--- 20. 12. 90                             Official Journal of the European Communities                             No C 320/27
                      ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
(c) the distribution of a computer program by means of           Unchanged
     sale, licensing, lease rental and the importation for
     these purposes. The right to control the distribution
     of a program shall be exhausted in respect of its sale
     and its importation following the first marketing of
     the program by the right holder or with his consent.
                           Article 5                                                       Article 5
              Exceptions to the restricted acts                                Exceptions to the restricted acts
1.    Where a computer program has been sold or made              1.   When a copy of a computer program has been sold,
available to the public other than by a written license          the acts referred to in Article 4 (a) and (b) shall not
agreement signed by both parties, the acts enumerated in         require the authorization by the rightholder where they
Article 4 (a) and (b) shall not require the authorization        are necessary for the use of the program by the lawful
of the rightholder, in so far as they are necessary for the      acquirer in accordance with its intended purpose,
use of the program. Reproduction and adaptation of the           including for error correction.
computer other than for the purpose of its use shall
require the authorization of the rightholder.
                                                                 2.    The provisions of paragraph 1 shall also apply to a
                                                                 licensee when the licence to use a copy of a computer
                                                                 program does not contain specific provisions dealing
                                                                 with such acts. The licence may not prevent the loading
                                                                 and running of a copy of a computer program necessary
                                                                 for its use by the licensee in accordance with its intended
                                                                 purpose.
                                                                 3.    The making of a back-up copy by a person having
                                                                 a right to use the program may not be prevented by
                                                                 contract in so far as it is necessary for that use.
2.     Where a computer program has been sold or made            4.    Where a copy of a computer program has been
available to the public by means other than a written            made lawfully available to the public and in the absence
license agreement signed by both parties, the exclusive          of contractual provisions to the contrary, the right to
right of the rightholder to authorize rental shall not be        authorize rental shall not be exercised to prevent normal
exercised to prevent use of the program by the public in         use of the program in non-profit-making public libraries.
non-profit-making public libraries.
                                                                 5.     Subject to the provisions of Article 4 (a) the person
                                                                 having a right to use a copy of a program shall be
                                                                 entitled, without the authorization of the right-holder, to
                                                                 observe, study or test the functioning of the program in
                                                                 order to determine the ideas, principles and other
                                                                 elements which underlie the program and which are not
                                                                 protected by copyright, if he does so while performing
                                                                 any of the acts of loading, displaying, running, trans-
                                                                 mitting or storing the program which he is entitled to do.
 ---pagebreak--- No C 320/28                 Official Journal of the European Communities                                20. 12. 90
            ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
                                                                                Article 5a
                                                                  Amendment to the form of the code
                                                       1.    Notwithstanding contractual provisions to the
                                                      contrary, the authorization of the owner of the rights
                                                      shall not be required where reproduction of the code and
                                                      translation of its form are indispensable to achieve the
                                                      creation, maintenance or functioning of an indepen-
                                                      dently created interoperable program, provided that the
                                                      following conditions are met:
                                                      (a) these acts are performed by the licensee or by
                                                           another person having a right to use a copy of a
                                                           program, or on their behalf by a person authorized
                                                           to do so;
                                                      (b) the information necessary to achieve interoperability
                                                           has not previously been published, or made available
                                                           to the persons referred to in point (a); and
                                                      (c) these acts are confined to the parts of the original
                                                           program which are necessary to achieve interoper-
                                                           ability with it.
                                                      2.    The provisions of paragraph 1 of this Article shall
                                                      not permit the information obtained through its
                                                      application:
                                                      (a) to be used for goals other than to achieve the inter-
                                                           operability of the independently created program;
                                                      (b) to be given to others, except when necessary for the
                                                           interoperability of the independently          created
                                                           program; or
                                                       (c) to be used for the creation or marketing of a
                                                           program which infringes copyright in respect of the
                                                           original program, and in particular of a program
                                                           substantially similar in its expression.
                                                       3.    In accordance with the provisions of the Berne
                                                       Convention for the protection of Literary and Artistic
                                                      works, the provisions of this Article may not be inter-
                                                      preted in such a way as to allow its application to be
                                                       used in a manner which unreasonably prejudices the
                                                       rightholder's legitimate interests or conflicts with a
                                                       normal exploitation of the computer program.
 ---pagebreak--- 20. 12. 90                            Official Journal of the European Communities                            No C 320/29
                      ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
                           Article 6                                                      Article 6
                   Secondary infringement                                         Secondary infringement
1.    It shall be an infringement of the author's exclusive     Unchanged
rights in the computer program to import, possess or
deal with an infringing copy of the program, knowing or
having reason to believe it to be an infringing copy of
the work.
2.    It shall be an infringement of the author's exclusive     Unchanged
rights in the computer program to make, import, possess
or deal with articles intended specifically to facilitate the
removal or circumvention of any technical means which
have been applied to protect a program.
                           Article 7                                                      Article 7
                     Term of protection                                             Term of protection
Protection shall be granted for 50 years from the date of       Protection shall be granted for the life of the author and
creation.                                                       for 50 years after his death; where the computer
                                                                program is an anonymous or pseudonymous work, the
                                                                term of protection shall be 50 years from the time that
                                                                the computer program is first lawfully made available to
                                                                the public. The term of protection shall be deemed to
                                                                begin on the first of January of the year following the
                                                                abovementioned events.
                        CHAPTER II                                                     CHAPTER II
                           Article 8                                                      Article 8
      Continued application of other legal provisions                  Continued application of other legal provisions
 1.   The provisions of this Directive shall be without          1.    The provisions of this Directive shall be without
prejudice to any legal provisions concerning patent              prejudice to any other legal provisions such as those
rights, trade marks, unfair competition, trade secrets or        concerning patent rights, trade marks, unfair compe-
the law of contract in so far as such provisions do not          tition, trade secrets, protection of semi-conductor
conflict with the principles laid down in the present            products or the law of contract.
Directive.
2.    The provisions of this Directive are applicable also       2.    The provisions of this Directive are applicable also
in respect of works created prior to (date in Article 9).        to programs created prior to 1 January 1993 without
                                                                 prejudice to any acts concluded and rights acquired
                                                                 before that date.
 ---pagebreak--- No C 320/30                           Official Journal of the European Communities                          20. 12. 90
                    ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
                      CHAPTER III                                                     CHAPTER III
                         Article 9                                                       Article 9
                     Final provisions                                                Final provisions
1.    Member States shall bring into force the laws,            Unchanged
regulations or administrative provisions needed in order
to transpose this Directive by 1 January 1993.
2.    Member States shall ensure that they communicate          2.   Member States shall communicate to the
to the Commission the texts of the provisions of national       Commission the provisions of national law which they
law which they adopt in the field covered by this               adopt in order to transpose this Directive.
Directive.
                        Article 10                                                      Article 10
This Directive is addressed to the Member States.               Unchanged