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Council Directive 93/98/EEC of 29 October 1993

harmonizing the term of protection of copyright and certain related
rights

THE
COUNCIL OF THE EUROPEAN COMMUNITIES,

Having
regard to the Treaty establishing the European Economic Community, and in
particular Articles 57 (2), 66 and 100a thereof,

 

Having regard to the proposal from
the Commission 1,

 

In cooperation with the European
Parliament 2,

 

Having regard to the opinion of the
Economic and Social Committee 3,

 

(1) Whereas the Berne Convention for
the protection of literary and artistic works and the International Convention
for the protection of performers, producers of phonograms and broadcasting
organizations (Rome Convention) lay
down only minimum terms of protection
of the rights they refer to, leaving the Contracting States free to grant
longer terms; whereas certain Member States have exercised this entitlement; whereas in addition certain
Member States have not become party to the Rome Convention;

 

(2) Whereas there are consequently
differences between the national laws governing the terms of protection of
copyright and related rights, which are liable to impede the free movement of
goods and freedom to provide
services, and to distort competition in
the common market; whereas therefore with a view to the smooth operation of the
internal market, the laws of the Member States should be harmonized so as to
make terms of protection identical throughout the Community;

 

(3) Whereas harmonization must cover
not only the terms of protection as such, but also certain implementing
arrangements such as the date from which each term of protection is calculated;

 

(4) Whereas the provisions of this Directive do not affect the
application by the Member States of the provisions of Article 14 bis paragraphe
2 points b), c) et d) et paragraphe 3 de la convention de Berne;

 

(5) Whereas the minimum term of
protection laid down by the Berne Convention, namely the life of the author and
50 years after his death, was intended to provide protection for the author and
the first two generations of his
descendants; whereas the average
lifespan in the Community has grown
longer, to the point where this term is no longer sufficient to cover two
generations;

 

(6) Whereas certain Member States
have granted a term longer than 50
years after the death of the author in order to offset the effects
of the world wars on the exploitation of
authors' works;

 

(7) Whereas for the protection of
related rights certain Member States have introduced a term of 50 years after
lawful publication or lawful communication to the public;

______________________________________

1
OJ No C 92, 11. 4. 1992, p. 6 and OJ No C 27, 30. 1. 1993, p. 7.

2
OJ No C 337, 21. 12. 1992, p. 205 and Decision of 27 October 1993 (not yet
published in the Official

Journal).

3
OJ No C 287, 4. 11. 1992, p. 53.

 

(8) Whereas under the Community
position adopted for the Uruguay Round negotiations under the General Agreement
on Tariffs and Trade (GATT) the term of protection for producers of phonograms
should be 50 years after first publication;

 

(9) Whereas due regard for
established rights is one of the general principles of law protected by the
Community legal order; whereas, therefore, a harmonization of the terms of
protection of copyright and related
rights cannot have the effect of
reducing the protection currently enjoyed by rightholders in the Community; whereas in
order to keep the effects of transitional measures to a minimum and to
allow the internal market to operate
in practice, the harmonization of the term of protection should take place on a long term basis;

 

(10) Whereas in its communication of
17 January 1991'Follow-up to the Green
Paper - Working programme of the Commission in the field of copyright and
neighbouring rights' the Commission stresses the need to harmonize copyright
and neighbouring rights at a high level
of protection since these rights are fundamental to intellectual creation and
stresses that their protection ensures the maintenance and development of creativity in the
interest of authors, cultural industries, consumers and society as a whole;

 

(11) Whereas in order to establish a
high level of protection which at the same time meets the requirements of the
internal market and the need to establish a legal environment conducive to the
harmonious development of literary and artistic creation in the Community, the term of protection for copyright should be harmonized at 70 years
after the death of the author or 70 years after the work is lawfully made
available to the public, and for related rights at 50 years after the event
which sets the term running;

 

(12) Whereas collections are
protected according to Article 2 (5) of
the Berne Convention when, by reason of the selection and arrangement of
their content, they constitute intellectual creations; whereas those works are protected as such,
without prejudice to the copyright in
each of the works forming part of such collections, whereas in consequence
specific terms of protection may apply to works included in collections;

 

(13) Whereas in all cases where one
or more physical persons are identified as authors the term of protection
should be calculated after their death; whereas the question of authorship in
the whole or a part of a work is a question of fact which the national courts may have to decide;

 

(14) Whereas terms of protection
should be calculated from the first day of January of the year following the
relevant event, as they are in the Berne and Rome Conventions;

 

(15) Whereas Article 1 of Council
Directive 91/250/EEC of 14 May 1991 on the legal protection of computer
programs 4 provides that
Member States are to protect computer programs, by copyright, as literary works within the meaning of the
Berne Convention; whereas this
Directive harmonizes the term of protection of literary works in the Community;
whereas Article 8 of Directive 91/250/EEC, which merely makes provisional
arrangements governing the term of protection of computer programs, should accordingly be repealed;

 

(16) Whereas Articles 11 and 12 of
Council Directive 92/100/EEC of 19 November 1992 on rental right and lending
right and on certain rights related to copyright in the field of intellectual
property 5 make provision
for minimum terms of protection only,
subject to any further harmonization; whereas this Directive provides such
further harmonization; whereas these Articles should accordingly be repealed;

________________________

4
OJ No L 122, 17. 5. 1991, p. 42.

5
OJ No L 346, 27. 11. 1992, p. 61.

 

(17) Whereas the protection of
photographs in the Member States is the subject of varying regimes; whereas in
order to achieve a sufficient harmonization of the term of protection of
photographic works, in particular of those which, due to their artistic or professional character, are of
importance within the internal market, it is necessary to define the level of
originality required in this Directive; whereas a photographic work within the
meaning of the Berne Convention is to be considered original if it is the author's own intellectual creation
reflecting his personality, no other criteria such as merit or purpose being
taken into account; whereas the protection of other photographs should be left
to national law;

 

(18) Whereas, in order to avoid
differences in the term of protection as regards related rights it is necessary
to provide the same starting point for the calculation of the term throughout
the Community; whereas the performance, fixation, transmission, lawful publication, and lawful communication
to the public, that is to say the means of making a subject of a related right
perceptible in all appropriate ways to persons in general, should be taken into
account for the calculation of the term of
protection regardless of the country where this performance, fixation,
transmission, lawful publication, or lawful communication to the public takes
place;

 

(19) Whereas the rights of
broadcasting organizations in their broadcasts, whether these broadcasts are
transmitted by wire or over the air, including by cable or satellite, should
not be perpetual; whereas it is therefore necessary to have the term of protection running from the first
transmission of a particular broadcast only; whereas this provision is
understood to avoid a new term running in cases where a broadcast is identical
to a previous one;

 

(20) Whereas the Member States
should remain free to maintain or introduce other rights related to copyright
in particular in relation to the protection of critical and scientific
publications; whereas, in order to
ensure transparency at Community level,
it is however necessary for Member States which introduce new related rights to
notify the Commission;

 

(21) Whereas it is useful to make
clear that the harmonization brought about by this Directive does not apply to
moral rights;

 

(22) Whereas, for works whose
country of origin within the meaning of the Berne Convention is a third country
and whose author is not a Community national, comparison of terms of protection
should be applied, provided that
the term accorded in the Community does
not exceed the term laid down in this Directive;

 

(23) Whereas where a rightholder who
is not a Community national qualifies for protection under an international
agreement the term of protection of related rights should be the same as that
laid down in this Directive, except
that it should not exceed that fixed in
the country of which the rightholder is a national;

 

(24) Whereas comparison of terms
should not result in Member States being brought into conflict with their
international obligations;

 

(25) Whereas, for the smooth
functioning of the internal market this Directive should be applied as from 1
July 1995;

 

(26) Whereas Member States should
remain free to adopt provisions on the interpretation, adaptation and further
execution of contracts on the exploitation of protected works and other subject
matter which were concluded before
the extension of the term of protection
resulting from this Directive;

 

(27) Whereas respect of acquired
rights and legitimate expectations is part of the Community legal order;
whereas Member States may provide in particular that in certain circumstances
the copyright and related rights
which are revived pursuant to this
Directive may not give rise to payments by persons who undertook in good
faith the exploitation of the works at the time when such works lay within
the public domain,

 

 

HAS ADOPTED THIS DIRECTIVE:

Article
1

Duration of authors' rights

 

1. The rights of an author of a
literary or artistic work within the meaning of Article 2 of the Berne Convention
shall run for the life of the author and for 70 years after his death,
irrespective of the date when the work is lawfully made available to the public.

 

2. In the case of a work of joint
authorship the term referred to in paragraph 1 shall be calculated from the
death of the last surviving author.

 

3. In the case of anonymous or
pseudonymous works, the term of
protection shall run for seventy years after the work is lawfully made
available to the public. However, when the pseudonym adopted by the author
leaves no doubt as to his identity, or if
the author discloses his identity during the period referred to in the
first sentence, the term of protection applicable shall be that laid down in

.1 .2