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31991L0250

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

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

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

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic Community and
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
States by existing legislation and such protection, where it exists, has
different attributes;

Whereas 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;

Whereas 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;

Whereas 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 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 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;

Whereas 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;

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 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;

Whereas the Community is fully committed to the promotion of international
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
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;

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

Whereas this functional interconnection and interaction is generally known as
'interoperability`; whereas such interoperability can be defined as the ability
to exchange information and mutually to 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;

Whereas, 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;

Whereas, 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; whereas this term does not
include public lending, which, accordingly, remains outside the scope of this
Directive;

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 the lawful acquirer;

Whereas 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; whereas, 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;

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 within the meaning of Article 4 (a) and (b)
are indispensable to obtain the necessary information to achieve the
interoperability of an independently created program with other programs;

Whereas 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;

Whereas 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;

Whereas 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;

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 fifty 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 copyright laws should be
without prejudice to the application, in appropriate cases, of other forms of
protection; whereas, however, any contractual provisions contrary to Article 6
or to the exceptions provided for in Article 5 (2) and (3) should be null and
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
dominant supplier refuses to make information available which is necessary for
interoperability as defined in this Directive;

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 telecommunications sector or Council Decisions
relating to standardization in the field of information technology and
telecommunication;

Whereas this Directive does not affect derogations provided for under
national legislation in accordance with the Berne Convention on points not
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
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.

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

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, transmision 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. 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 (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 (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
to so;

(b) the information necessary to achieve interoperability has not previously
been readily available to the persons referred to in subparagraph (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

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 acts listed in subparagraphs
(a), (b) and (c) below:

(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 Term of protection

1. Protection shall be granted for the life of the author and for fifty years
after his death or after the death of the last surviving author; where the
computer program is an anonymous or pseudonymous work, or where a legal person
is designated as the author by national legislation in accordance with Article 2
(1), the term of protection shall be fifty 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.

2. Member States which already have a term of protection longer than that
provided for in paragraph 1 are allowed to maintain their present term until
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
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.

2. 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.

Article 10 Final provisions

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

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

2. Member States shall communicate to the Commission the provisions of
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
published in the Official Journal).

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

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