Directive 91/250/EEC is the first European act intended to harmonize the certain aspects in the European copyright law which has removed the significant differences existed previously in the laws of the Member States198. This Directive concluded a debate concerning the type of
protection of computer programs started in 1960s199 and granted copyright protection to the
computer programs instead of sui generis protection. Particularly the computer programs are protected as literary works, within the meaning of the Berne Convention.200 Such
195 Directive 2004/48/EC.
196 Tritton, Dreier/Hugenholtz, Walter/Lewinski, etc.
197 Lakits-Josse in: Cottier/Veron Concise International and European IP Law, p. 464. 198 Bentley in: Dreier/Hugenholtz Concise Copyright, p.211.
199 Walter in: Walter/Lewinski, p. 91. 200 Art. 1.1, Directive 91/250/EEC.
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equalization of computer programs and literary works can be problematic, as their natures are different and some norms of traditional copyright might not be suitable for the computer program201. Therefore it would be recommended to dedicate separate section to the
protection of computer programs, as it is, for example, in German Copyright Act202. Another
important feature of this Directive is that it does not provide the definition of the term ‘computer program’, it only indicates that the term ‘computer programs’ shall include their preparatory design material.203 Such a definition can be found in the preparatory
documents204, but it was not included in the text considering that such definition could
become outdated.205 As the Computer Programs Directive has been the response to
technological challenges, such approach can be justified due to the dynamic character of technological developments which can easily make the definitions outdated. In German Copyright Act, for example, ‘computer programs’ are defined as “programs of any form, including the drafts and their preparatory design material”206.
The Directive expresses the general principle of copyright protection, which is granted only to the expression in any form and not to the ideas and principles207. As the computer program
is a specific issue, recital 14 adds that” '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”208. Another general
principle of copyright, which the Directive applies to, is the principle of originality, according to which the work can be protected if it is original in the sense that it is author’s own intellectual creation. In order to implement this norm some of the EU member states
201 Walter, in: Walter/Lewinski, p. 93.
202 Abschnitt 8 - Besondere Bestimmungen für Computerprogramme, Urheberrechtsgesetz. 203 Art. 1.1, Directive 91/250/EEC.
204 Janssens in: Stamatoudi/Torremans, ECL, 2014
205 Bentley, in: Dreier/Hugenholtz Concise Copyright, p.216. 206 Art 69a.1, German Copyright Act.
207 Walter, in: Walter/Lewinski, p. 102. 208 Recital 14, Directive 91/250/EEC.
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had to lower the thresholds in their legislations, while the others had to lift them up209.
Similarly the non-member states should also have to adapt the thresholds in their legislations to this norm of the Directive.
Authorship is also one of the general principles regulated by the Directive into details. Particularly, the author shall be natural person or group of natural persons who has created the computer program. At the same time the legal person can also be designated as the right- holder “where the legislation of the Member States permits”210. The balanced nature of this
norm makes it applicable for the legislations of the non-member states with different regulations of ownership. The example of ‘balance-based approach’ in terms of finding delicate balance between the interests of authors, entrepreneurs, and general public211 is
Article 5 of the Directive, since it defines the exceptions to restricted acts and requires to recognize that computer programs can be used in particular ways without infringing copyright212. Similarly to the notion of the computer programs, the Directive does not define
what is deemed a collective work and leaves the definition of such works to the national legislations.213 Beneficiaries of protection can be all natural or legal persons “eligible under
national copyright legislation as applied to literary works”214. The nature of some exclusive
rights of the right-holder is also specified in the Article 4 of the Directive, but this Article is not exhaustive and it leaves other rights to be determined by national laws215. As we can see,
these norms are quite flexible to be implemented in the national legislations of non-member states.
However, the Directive also contains some norms which are specifically intended for the EU and its member states. Article 4, for example, refers to the Community, stating that “the first
209 Bentley, in: Dreier/Hugenholtz Concise Copyright, p.217. 210 Art 1.1, Directive 91/250/EEC.
211 Janssens, in: Derclaye, research Handbook, p.336.
212 Bentley, in: Dreier/Hugenholtz Concise Copyright, p.225. 213 Walter, in: Walter/Lewinski, p. 114.
214 Art 1.1, Directive 91/250/EEC.
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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…”216. The Community
here refers to the European Economic Area217. This norm is too specific to be implemented in
the legislations of the non-member states. Another example of such ‘EU-specific’ norm is Article 7, which indicates several times that it refers to the member states218. However, in
this case the content of these norms are not ‘EU-specific’ and, although they were initially intended for the member states, still they can be referred to the legislations of the non- member states as well (the problematic aspects of implementing Article 7 will be discussed below). Article 10 refers exclusively to the implementation of the Directive in the legislations of the member states. Finally the Directive states explicitly that it is “addressed to the Member States”219, but it does not preserve the Directive to be implemented in the non-
member states as well. In case of member states the implementation “could be carried out more or less by copying the Directive’s provisions”220. On the other hand, the legislators of
the non-member states have to be more careful and oriented on the selection of the norms applicable for their countries rather than copying them automatically.
Article 7 defines the special measures of protection and requires that member states shall provide appropriate remedies against a person who commits infringing acts “in accordance with their national legislation”221. Problem of implementing this norm in the legislations of
the non-member states can be that the realities in these countries shall be inappropriate for imposing such requirements. Particularly, in terms of computer programs protection the situations in member and non-member states of the EU differ from each other significantly. Considering the general principle that the legislation has to be appropriate to the reality in the country, the imposition of such requirements should not be recommended in the
216 Art 4.c, Directive 91/250/EEC
217 Bentley, in: Dreier/Hugenholtz Concise Copyright, p.224. 218 Art. 7.1, 7.2, 7.3, Directive 91/250/EEC.
219 Art. 12, Directive 91/250/EEC. 220 Walter, in: Walter/Lewinski, p. 216. 221 Art. 7.1, Directive 91/250/EEC.
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countries where the level of computer programs protection is significantly lower, comparing to the one in the EU. Otherwise we will receive the situation when the law and the actual reality are in conflict with each other. Therefore the implementation of Article 7 of the Directive should be based on the consideration of actual realities in each of the non-member states in terms of computer programs protection.