Computer Programs in Europe: A Comparative Analysis of the 1991 EC Software Directive

Long awaited – if not feared – in the computer industry, where its elaboration had evoked heated debate, the European Council Directive of May 14, 1991 on the Legal Protection of Computer Programs (the Directive or Software Directive )has imposed common principles of copyright protection on the twelve Member States of the European Community (the EC , the Community ). As it declares in its preamble, the Directive responds to the need to ensure the proper functioning of a single marketand, to that end, to eliminate man), of the current differences among the Member States\u27 legal systems. In the domain of European copyright law, the Software Directive is a trend-setting text. This, the Community\u27s first directive concerning copyright law, was enacted more than thirty years following the adoption of the Treaty of Rome. The treaty mentions copyright only in Article 36, which simply affirms that the free circulation of goods in the Community must respect intellectual property rights. The Directive was elaborated in the wake of the White Paper of 1985 on the internal market, which in turn presaged the adoption of the Single European Act of 1986, and followed the Green Paper of 1988 on Copyright and the Challenge of Technology. The White Paper mentioned intellectual property rights as objects of harmonization, especially with respect to new technologies, and the Green Paper constituted the first true program for Community action in the area of intellectual property. The historical contrast between the EC\u27s approach to copyright and that of the United States is striking. In the United States, the Constitution declared from the beginning federal competence over copyright law (and patent law), a competence which led to uniformity of law among the fifty States. The current EC effort shows that, starting from a diametrically opposed position, convergence can nonetheless occur. Henceforth, in Europe, Community institutions will take charge of at least some intellectual property issues, preempting or overriding Member State regulation in the field