Legal protection: Computer programs

This Directive aims to harmonise Member States' legislation regarding the protection of computer programs in order to create a legal environment which will afford a degree of security against unauthorised reproduction of such programs

ACT

Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs [See amending acts].

SUMMARY

The Member States are obliged to protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works.

The ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright.

A computer program is protected if it is original in the sense that it is the author's own intellectual creation.

Who is the author of a computer program?

In general, the author of a computer program is the natural or legal person or group of natural persons who created it. Where collective works are recognised by the legislation of a Member State, the person considered by the legislation of that Member State to have created the work is deemed to be its author.

In the case of a program created by a group of natural persons, the exclusive rights are owned jointly. 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 alone will be entitled to exercise all economic rights in the program, unless otherwise provided for by contract.

Protection is accorded on the basis of residence, nationality and first publication as laid down by the relevant Member State.

Copyright

The exclusive rights of the author include the right to perform or to authorise:

• the reproduction of a computer program;
• the translation, adaptation, arrangement and other alteration of a computer program;
• the distribution, including the rental, of a computer program or of copies thereof.

Exceptions

The Directive provides for certain exceptions regarding copyright, mainly for the following situations:

• 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.
• A person having a right to use a copy of a computer program is entitled 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 perform.

There is also provision for a derogation which would allow the decompilation of a program under certain limited conditions and with the aim of achieving the interoperability of an independently created computer program.

Special protection measures

Special protection measures will be taken against a person committing any of the acts listed below:

• any act of putting into circulation a copy of a computer program knowing, or having reason to believe, that it is a pirated copy;
• any possession for commercial purposes of a copy of a computer program knowing, or having reason to believe, that it is a pirated copy;
• any act of putting into circulation or the possession for commercial purposes of any means with the intended purpose of facilitating the unauthorised removal or circumvention of any technical device which may have been applied to protect a computer program. Directive 91/250/EEC is repealed by Directive 2009/24/EC.

RELATED ACTS

Report dated 10 April 2000 from the Commission to the Council, the European Parliament and the Economic and Social Committee on the implementation and effects of Directive 91/250/EEC on the legal protection of computer programs [COM(2000) 199 final]. An evaluation of the Directive’s implementation in the Member States has shown that its objectives have been achieved and that its effect on the software sector has been satisfying. The Directive has improved the situation of the computer program sector in four ways: piracy has been reduced, employment has increased, there has been a switch to open systems and there has been a harmonisation as to computer programs created by employees. Although only three Member States met the deadline for implementation, all have now adopted the laws, regulations and administrative provisions required at national level. However, the Commission may have to examine certain imperfections in greater depth. The software industry is generally satisfied with the basic features of the system that has been put in place. However, some specific problems have been raised as regards the distribution right and communication to the public, back-up copies, remedies and the technical provisions. As regards sanctions, the industry considers it necessary to set up a database containing the standards and minimum procedures based on the TRIPS Agreement. The Commission considers that no amendment of the Directive is necessary at present but does not rule out the possibility of adjustment at a later stage. The Commission is also planning measures under ongoing initiatives, such as the proposal on the Community patent and the Green Paper on combating counterfeiting and piracy.

Last updated: 13.08.2009