Report 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 computer programs

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Commission, Report 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 computer programs, COM(2000) 199 final, 10.04.2000

Type Paper
Legal context EU
Abstract On the occasion of the adoption of a common position on Council Directive 91/250/EEC (13 December 1990) the Commission made a political commitment to produce a report on the

implementation and effects of the Directive. As this was the first Directive in the field of copyright and related rights the provision of a review clause in the Directive itself had not yet become standard practice. The present report is substantially based on a study carried out by external consultants and finalised in 1997, together with the Commission’s own findings, including comments from interested circles. The overall results show that the objectives of the Directive have been achieved and the effects on the software industry are satisfactory (demonstrated for example by industry growth and decrease in software piracy). On the basis of these results there appears to be no need to amend the Directive. As far as implementation by Member States is concerned, some flaws have become apparent. While not all of these merit attention by the Commission, others may need to be investigated further with a view to possible infringement proceedings. Some specific issues raised by industry (the distribution right and communication to the public, back-up copies, remedies, and technical devices) are also addressed. While the Commission concludes that no amendment of the Directive in these respects is appropriate at present, this is not to rule out the possibility of adjustment at a later stage in the light of other developments. Finally reference is made to related Community initiatives, specifically the patentability of computer software (which would complement the existing copyright protection) and the Green Paper on combating counterfeiting and piracy in the single market, which would be the appropriate context for further action on software piracy. Member States’ attention is drawn in particular to the importance of government policies on the use of legal software.

Link http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52000DC0199&from=EN
Topics Contract, Intellectual Property, Property

Notes

The Commission deals with art. 5(1) of the Software Directive (p. 12).

“Divergences of views subsist however as to the meaning of “lawful acquirer”. Several Member States have transposed this notion by using the term “lawful user” i.e. a person having a right to use the program.

The Commission shares the view of some commentators that “lawful acquirer” did in fact mean a purchaser, licensee, renter or a person authorised to use the program on behalf of one of the above. This argument also draws from Articles 6 and 8 of the database Directive (Directive 96/9/EC) which use the term “lawful user” and which were modelled along the lines of Article 5 (1) of the computer programs Directive.

In the view of the Commission, what was intended by Article 5 (1) and recital 18 was that it should not be possible to prevent by contract a “lawful acquirer” of a program doing any of the restricted acts that were required for the use of the program in accordance with its intended purpose or for correcting errors. It is, however, possible for a contract to include specific provisions that “control” the restricted acts which may be carried out by the user of the computer program.”

The Commission also deals with art. 4 of the Software Directive (p. 17).

The new WIPO Copyright Treaty (WCT) of December 1996 provides for authors of literary and artistic works including computer programs the exclusive right of authorising any communication to the public by wire or wireless means, including making available (Article 4 in conjunction with Article 8 WCT).

On the basis of such new international rules it has been suggested that an express communication to the public right (including a right of making available) be added to the bundle of restricted acts under Article 4 of the Directive. In this context it has also been proposed by parts of the computer programs industry to clarify the scope of the exhaustion principle.

As to the exhaustion of copyright it must be borne in mind that under the Directive Community exhaustion only applies to the sale of copies i.e. goods, whereas supply through on-line services does not entail exhaustion.

Furthermore, the Commission notes that by contrast with the other Community acquis concerning the distribution right Article 4 (c) of the Directive refers to "any form" of distribution “to the public” of a copyright computer program. This could be interpreted as meaning that the distribution right under Directive 91/250/EEC is not limited to the distribution of tangible copies of a computer program on floppy disks.

Whilst Article 4 (c) is capable of such a wide interpretation, the author's exclusive right of authorising any making available to the public of the work in such a way that members of the public may access it from a place and at a time individually chosen by them (cf. Article 8 WCT) is currently not provided for. Under these circumstances the need for the Community to ensure compliance with WCT requirements by providing for complementary rules on making available of computer programs is being taken into account in the proposal for a Directive on copyright and related rights in the Information Society.

See European Parliament and Council, DIRECTIVE 2009/24/EC on the legal protection of computer programs, 2009/24/EC, 23.04.2009.

See SMITH G.P., Shrink-Wrap Licences in Europe After the EC Software Directive, Computer Law Journal, 11, 4, 1992, 957.