Computer programs — legal protection

 

SUMMARY OF:

Directive 2009/24/EC — the legal protection of computer programs

WHAT IS THE AIM OF THE DIRECTIVE?

It aims to clarify and remove differences between the legal protection of computer programs in different European Union (EU) countries in order to contribute to the proper functioning of the internal market.

KEY POINTS

• EU countries must protect computer programs by copyright.
• Programs should be protected as literary works, within the meaning of the Berne Convention for the Protection of Literary and Artistic Works.
• Computer programs include their preparatory design material.

Scope

The protection provided for in this directive applies to:

• the expression of a computer program in any form, but not ideas and principles which underlie a computer program or any elements of it;
• a computer program which is original in the sense that it is the author’s own intellectual creation;
• computer programs created before 1 January 1993, without prejudice to any acts concluded and rights acquired before that date.

Authorship

• The author of a computer program is the person or group of people who have created the program or, where national legislation permits, a legal person, i.e. a company or other legal entity.
• If several persons participate in creating a program, the exclusive rights are held jointly by these persons.
• If an employee creates a computer program in the course of his duties or following the instructions given by his employer, the employer exclusively has the economic rights relating to that computer program.

Exclusive rights of the rights-holder

The holder of the rights to a computer program may do, or may authorise others to do, the following:

• the permanent or temporary reproduction of the program, or a part thereof;
• the translation, adaptation, arrangement and any other alteration of the program;
• the distribution of the programme.

Limitations of those exclusive rights (no need for prior authorisation from the rights-holder)

• A lawful acquirer of a program may reproduce, translate, adapt, arrange or alter the program, when it is necessary in order to use the program in accordance with its intended purpose.
• A person having a right to use the computer program may make a back-up copy in so far as it is necessary for that use.
• This person may also observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program.

Decompilation *

Prior authorisation from the rights-holder is not required where reproduction of the code and translation of its form are essential to obtain information necessary to achieve the interoperability* of a new computer program with other programs.

The following conditions apply:

• those acts are performed by the licensee or another person having a right to use a copy of a program;
• the information on interoperability has not previously been readily available;
• those acts are confined to the parts of the original program which are necessary in order to achieve interoperability.

Special measures of protection

Measures must be taken by EU countries against persons who commit any of the following:

• putting into circulation an infringing copy of a computer program;
• possession of an infringing copy of a program for commercial purposes;
• putting into circulation or owning, for commercial purposes, any means whose sole purpose is to allow the unauthorised removal or bypassing of any technical protection device.

An infringing copy of a computer program may be seized in accordance with EU countries’ national laws.

FROM WHEN DOES THE DIRECTIVE APPLY?

It has applied since 25 May 2009. EU countries had to incorporate it into national law by 31 December 1992, the date indicated in the Directive 91/250/EEC that is codified by Directive 2009/24/EC.

BACKGROUND

For more information, see:

• Protection of computer programs

* KEY TERMS

MAIN DOCUMENT

Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (Codified version) (OJ L 111, 5.5.2009, pp. 16–22)

last update 23.01.2017