EUR-Lex - 31991L0250

31991L0250

Council Directive 91/250/EEC of 14 May 1991 on the legal = protection=20 of computer programs

Official Journal L 122 , = 17/05/1991 P.=20 0042 - 0046
Finnish special edition: Chapter 17 Volume 1 P. 0111 =
Swedish=20 special edition: Chapter 17 Volume 1 P. 0111

COUNCIL DIRECTIVE of 14 May 1991 on the legal protection of computer = programs=20 (91/250/EEC)

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic = Community and=20 in particular Article 100a thereof,

Having regard to the proposal from the Commission (1),

In cooperation with the European Parliament (2),

Having regard to the opinion of the Economic and Social Committee = (3),

Whereas computer programs are at present not clearly protected in all = Member=20 States by existing legislation and such protection, where it exists, has = different attributes;

Whereas the development of computer programs requires the investment = of=20 considerable human, technical and financial resources while computer = programs=20 can be copied at a fraction of the cost needed to develop them=20 independently;

Whereas computer programs are playing an increasingly important role = in a=20 broad range of industries and computer program technology can = accordingly be=20 considered as being of fundamental importance for the Community's = industrial=20 development;

Whereas certain differences in the legal protection of computer = programs=20 offered by the laws of the Member States have direct and negative = effects on the=20 functioning of the common market as regards computer programs and such=20 differences could well become greater as Member States introduce new = legislation=20 on this subject;

Whereas existing differences having such effects need to be removed = and new=20 ones prevented from arising, while differences not adversely affecting = the=20 functioning of the common market to a substantial degree need not be = removed or=20 prevented from arising;

Whereas the Community's legal framework on the protection of computer = programs can accordingly in the first instance be limited to = establishing that=20 Member States should accord protection to computer programs under = copyright law=20 as literary works and, further, to establishing who and what should be=20 protected, the exclusive rights on which protected persons should be = able to=20 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=20 include programs in any form, including those which are incorporated = into=20 hardware; whereas this term also includes preparatory design work = leading to the=20 development of a computer program provided that the nature of the = preparatory=20 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 determining = whether or=20 not a computer program is an original work, no tests as to the = qualitative or=20 aesthetic merits of the program should be applied;

Whereas the Community is fully committed to the promotion of = international=20 standardization;

Whereas 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=20 purpose, a logical and, where appropriate, physical interconnection and=20 interaction is required to permit all elements of software and hardware = to work=20 with other software and hardware and with users in all the ways in which = they=20 are intended to function;

Whereas the parts of the program which provide for such = interconnection and=20 interaction between elements of software and hardware are generally = known as=20 'interfaces`;

Whereas this functional interconnection and interaction is generally = known as=20 'interoperability`; whereas such interoperability can be defined as the = ability=20 to exchange information and mutually to use the information which has = been=20 exchanged;

Whereas, for the avoidance of doubt, it has to be made clear that = only the=20 expression of a computer program is protected and that ideas and = principles=20 which underlie any element of a program, including those which underlie = its=20 interfaces, are not protected by copyright under this Directive;

Whereas, in accordance with this principle of copyright, to the = extent that=20 logic, algorithms and programming languages comprise ideas and = principles, those=20 ideas and principles are not protected under this Directive;

Whereas, in accordance with the legislation and jurisprudence of the = Member=20 States and the international copyright conventions, the expression of = those=20 ideas and principles is to be protected by copyright;

Whereas, for the purposes of this Directive, the term 'rental` means = the=20 making available for use, for a limited period of time and for = profit-making=20 purposes, of a computer program or a copy thereof; whereas this term = does not=20 include public lending, which, accordingly, remains outside the scope of = this=20 Directive;

Whereas the exclusive rights of the author to prevent the = unauthorized=20 reproduction of his work have to be subject to a limited exception in = the case=20 of a computer program to allow the reproduction technically necessary = for the=20 use of that program by the lawful acquirer;

Whereas this means that the acts of loading and running necessary for = the use=20 of a copy of a program which has been lawfully acquired, and the act of=20 correction of its errors, may not be prohibited by contract; whereas, in = the=20 absence of specific contractual provisions, including when a copy of the = program=20 has been sold, any other act necessary for the use of the copy of a = program may=20 be performed in accordance with its intended purpose by a lawful = acquirer of=20 that copy;

Whereas a person having a right to use a computer program should not = be=20 prevented from performing acts necessary to observe, study or test the=20 functioning of the program, provided that these acts do not infringe the = copyright in the program;

Whereas the unauthorized reproduction, translation, adaptation or=20 transformation of the form of the code in which a copy of a computer = program has=20 been made available constitutes an infringement of the exclusive rights = of the=20 author;

Whereas, nevertheless, circumstances may exist when such a = reproduction of=20 the code and translation of its form within the meaning of Article 4 (a) = and (b)=20 are indispensable to obtain the necessary information to achieve the=20 interoperability of an independently created program with other = programs;

Whereas it has therefore to be considered that in these limited = circumstances=20 only, performance of the acts of reproduction and translation by or on = behalf of=20 a person having a right to use a copy of the program is legitimate and=20 compatible with fair practice and must therefore be deemed not to = require the=20 authorization of the rightholder;

Whereas an objective of this exception is to make it possible to = connect all=20 components of a computer system, including those of different = manufacturers, so=20 that they can work together;

Whereas such an exception to the author's exclusive rights may not be = used in=20 a way which prejudices the legitimate interests of the rightholder or = which=20 conflicts with a normal exploitation of the program;

Whereas, in order to remain in accordance with the provisions of the = Berne=20 Convention for the Protection of Literary and Artistic Works, the term = of=20 protection should be the life of the author and fifty years from the = first of=20 January of the year following the year of his death or, in the case of = an=20 anonymous or pseudonymous work, 50 years from the first of January of = the year=20 following the year in which the work is first published;

Whereas protection of computer programs under copyright laws should = be=20 without prejudice to the application, in appropriate cases, of other = forms of=20 protection; whereas, however, any contractual provisions contrary to = Article 6=20 or to the exceptions provided for in Article 5 (2) and (3) should be = null and=20 void;

Whereas the provisions of this Directive are without prejudice to the = application of the competition rules under Articles 85 and 86 of the = Treaty if a=20 dominant supplier refuses to make information available which is = necessary for=20 interoperability as defined in this Directive;

Whereas the provisions of this Directive should be without prejudice = to=20 specific requirements of Community law already enacted in respect of the = publication of interfaces in the telecommunications sector or Council = Decisions=20 relating to standardization in the field of information technology and=20 telecommunication;

Whereas this Directive does not affect derogations provided for under = national legislation in accordance with the Berne Convention on points = not=20 covered by this Directive,

HAS ADOPTED THIS DIRECTIVE:

Article 1 Object of protection

1. In accordance with the provisions of this Directive, Member States = shall=20 protect computer programs, by copyright, as literary works within the = meaning of=20 the Berne Convention for the Protection of Literary and Artistic Works. = For the=20 purposes of this Directive, the term 'computer programs` shall include = their=20 preparatory design material.

2. Protection in accordance with this Directive shall apply to the = expression=20 in any form of a computer program. Ideas and principles which underlie = any=20 element of a computer program, including those which underlie its = interfaces,=20 are not protected by copyright under this Directive.

3. A computer program shall be protected if it is original in the = sense that=20 it is the author's own intellectual creation. No other criteria shall be = applied=20 to determine its eligibility for protection.

Article 2 Authorship of computer programs

1. The author of a computer program shall be the natural person or = group of=20 natural persons who has created the program or, where the legislation of = the=20 Member State permits, the legal person designated as the rightholder by = that=20 legislation. Where collective works are recognized by the legislation of = a=20 Member State, the person considered by the legislation of the Member = State to=20 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=20 jointly, the exclusive rights shall be owned jointly.

3. Where a computer program is created by an employee in the = execution of his=20 duties or following the instructions given by his employer, the employer = exclusively shall be entitled to exercise all economic rights in the = program so=20 created, unless otherwise provided by contract.

Article 3 Beneficiaries of protection

Protection shall be granted to all natural or legal persons eligible = under=20 national copyright legislation as applied to literary works.

Article 4 Restricted Acts

Subject to the provisions of Articles 5 and 6, the exclusive rights = of the=20 rightholder within the meaning of Article 2, shall include the right to = do or to=20 authorize:

(a) the permanent or temporary reproduction of a computer program by = any=20 means and in any form, in part or in whole. Insofar as loading, = displaying,=20 running, transmision or storage of the computer program necessitate such = reproduction, such acts shall be subject to authorization by the=20 rightholder;

(b) the translation, adaptation, arrangement and any other alteration = of a=20 computer program and the reproduction of the results thereof, without = prejudice=20 to the rights of the person who alters the program;

(c) any form of distribution to the public, including the rental, of = the=20 original computer program or of copies thereof. The first sale in the = Community=20 of a copy of a program by the rightholder or with his consent shall = exhaust the=20 distribution right within the Community of that copy, with the exception = of the=20 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=20 Article 4 (a) and (b) shall not require authorization by the rightholder = where=20 they are necessary for the use of the computer program by the lawful = acquirer in=20 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=20 that use.

3. The person having a right to use a copy of a computer program = shall be=20 entitled, without the authorization of the rightholder, to observe, = study or=20 test the functioning of the program in order to determine the ideas and=20 principles which underlie any element of the program if he does so while = performing any of the acts of loading, displaying, running, transmitting = or=20 storing the program which he is entitled to do.

Article 6 Decompilation

1. The authorization of the rightholder shall not be required where=20 reproduction of the code and translation of its form within the meaning = of=20 Article 4 (a) and (b) are indispensable to obtain the information = necessary to=20 achieve the interoperability of an independently created computer = program with=20 other programs, provided that the following conditions are met:

(a) these acts are performed by the licensee or by another person = having a=20 right to use a copy of a program, or on their behalf by a person = authorized to=20 to so;

(b) the information necessary to achieve interoperability has not = previously=20 been readily available to the persons referred to in subparagraph (a); = and (c)=20 these acts are confined to the parts of the original program which are = necessary=20 to achieve interoperability.

2. The provisions of paragraph 1 shall not permit the information = obtained=20 through its application:

(a) to be used for goals other than to achieve the interoperability = of the=20 independently created computer program;

(b) to be given to others, except when necessary for the = interoperability of=20 the independently created computer program; or (c) to be used for the=20 development, production or marketing of a computer program substantially = similar=20 in its expression, or for any other act which infringes copyright.

3. In accordance with the provisions of the Berne Convention for the=20 protection of Literary and Artistic Works, the provisions of this = Article may=20 not be interpreted in such a way as to allow its application to be used = in a=20 manner which unreasonably prejudices the right holder's legitimate = interests or=20 conflicts with a normal exploitation of the computer program.

Article 7 Special measures of protection

1. Without prejudice to the provisions of Articles 4, 5 and 6, Member = States=20 shall provide, in accordance with their national legislation, = appropriate=20 remedies against a person committing any of the acts listed in = subparagraphs=20 (a), (b) and (c) below:

(a) any act of putting into circulation a copy of a computer program = knowing,=20 or having reason to believe, that it is an infringing copy;

(b) the possession, for commercial purposes, of a copy of a computer = program=20 knowing, or having reason to believe, that it is an infringing copy;

(c) any act of putting into circulation, or the possession for = commercial=20 purposes of, any means the sole intended purpose of which is to = facilitate the=20 unauthorized removal or circumvention of any technical device which may = have=20 been applied to protect a computer program.

2. Any infringing copy of a computer program shall be liable to = seizure in=20 accordance with the legislation of the Member State concerned.

3. Member States may provide for the seizure of any means referred to = in=20 paragraph 1 (c).

Article 8 Term of protection

1. Protection shall be granted for the life of the author and for = fifty years=20 after his death or after the death of the last surviving author; where = the=20 computer program is an anonymous or pseudonymous work, or where a legal = person=20 is designated as the author by national legislation in accordance with = Article 2=20 (1), the term of protection shall be fifty years from the time that the = computer=20 program is first lawfully made available to the public. The term of = protection=20 shall be deemed to begin on the first of January of the year following = the=20 abovementioned events.

2. Member States which already have a term of protection longer than = that=20 provided for in paragraph 1 are allowed to maintain their present term = until=20 such time as the term of protection for copyright works is harmonized by = Community law in a more general way.

Article 9 Continued application of other legal provisions

1. The provisions of this Directive shall be without prejudice to any = other=20 legal provisions such as those concerning patent rights, trade-marks, = unfair=20 competition, trade secrets, protection of semi-conductor products or the = law of=20 contract. Any contractual provisions contrary to Article 6 or to the = exceptions=20 provided for in Article 5 (2) and (3) shall be null and void.

2. The provisions of this Directive shall apply also to programs = created=20 before 1 January 1993 without prejudice to any acts concluded and rights = acquired before that date.

Article 10 Final provisions

1. Member States shall bring into force the laws, regulations and=20 administrative provisions necessary to comply with this Directive before = 1=20 January 1993.

When Member States adopt these measures, the latter shall contain a = reference=20 to this Directive or shall be accompanied by such reference on the = occasion of=20 their official publication. The methods of making such a reference shall = be laid=20 down by the Member States.

2. Member States shall communicate to the Commission the provisions = of=20 national law which they adopt in the field governed by this Directive. =

Article 11

This Directive is addressed to the Member States.

Done at Brussels, 14 May 1991. For the Council The President J. F. = POOS

(1) OJ No C 91, 12. 4. 1989, p. 4; and OJ No C 320, 20. 12. 1990, p. = 22.

(2) No C 231, 17. 9. 1990, p. 78; and Decision of 17 April 1991. yet=20 published in the Official Journal).

(3) OJ No C 329, 30. 12. 1989, p. 4.