Directive on the legal protection of computer programs (2009)

EU Member States 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.

The protection provided for in Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs applies to: the expression in any form of a computer program. Ideas and principles which underlie a computer program or any elements thereof are not included in this protection; a computer program when it is original in the sense that it is the author's own intellectual creation; computer programs created before 1 January 1993.

Authorship of computer programs

The author of a computer program is the natural person or group of natural persons who has created the program or, where the legislation of the Member State permits, a legal person.

If several persons participate in creating a program, the exclusive rights shall be held jointly by these persons.

In the event that an employee creates a computer program following the instructions given by his employer, the employer exclusively shall have the rights in that computer program.

Scope of the exclusive rights of the right holder

The holder of the rights to a computer program may do or authorise 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;
  • distribution of the programme.

Limitations of the exclusive rights of the right holder

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 without the agreement of the right holder.

Decompilation

The authorisation of the right holder is not required where reproduction of the code and translation of its form 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:

  • those acts are performed by the licensee or another person having a right to use a copy of a program;
  • the information necessary to achieve 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 Member States against persons committing any of the following acts:

  • putting into circulation an infringing copy of a computer program;
  • possession of a copy of a program for commercial purposes;
  • putting into circulation, for commercial purposes, any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of any technical protection device.

An infringing copy of a computer program may be seized.

This Directive repeals Directive 91/250/EEC.

UK Law

Under English law, all computer programs are protected by copyright provided that the requirements of originality and qualification are met. In many other jurisdictions there is equivalent protection.

There is no clear legal definition in the UK of “computer software” The Copyright Designs and Patents Act 1988 (“CDPA 1988”) does not provide a definition. The 2009 Software Directive  (consolidating all amendments to Directive 91/250/EEC) provides a wide definition in its recitals that a computer program includes: "programs in any form, including those which are incorporated into hardware. 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". This is not particularly helpful in terms of providing a definitive explanation of what is a “computer program”.

In the absence of clear legal definition, it is generally accepted that “computer software” should be interpreted in a technical sense as being the source code (and object code) for the program. This approach is consistent with the UK attitude of focussing on the copyright in the code when looking at ownership of software. In practice, the copyright in software comprises more than just the code – the visible layer of content might include graphics, sounds or music which will all be protected by copyright.

Reference

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).

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