No L 122/42 Official Journal of the European Communities 17.5.91
II
(Act whose publication is not obligatory)
COUNCIL
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 consi-
dered 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 esta-
blishing 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 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 soft-
ware and hardware to work with other software and hard-
ware 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 soft-
ware 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 jurispru-
dence of the Member States and the international copy-
right conventions, the expression of those ideas and prin-
ciples 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 neces-
sary 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, adap-
tation 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 indis-
pensable 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
reptoduction 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 right-
holder;
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 provi-
sions 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 copy-
right 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 inter-
faces in the telecommunications sector or Council Deci-
sions relating to standardization in the field of informa-
tion 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 I
Object of protection
1. In accordance with the provisions of this Directive,
Member States shall protect computer programs, by copy-
right, 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 intellec-
tual creation. No other criteria shall be applied to deter-
mine 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 exclusi-
vely 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 reproduc-
tion 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, inclu-
ding 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 authori-
zation 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 vhich are necessary to achieve interoperabi-
lity.
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 intero-
perability 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 market-
ing of a computer program substantially similar in its
expression, or for any other act which infringes copy-
right.
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 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 unautho-
rized 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 protec-
tion longer than that provided for in paragraph I 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, regu-
lations 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 Commis-
sion 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) OJ 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.
