JOHN CARLOS I

KING OF SPAIN

To all who present it and understand it.

Sabed: That the General Courts have approved and I come to sanction the following Law:

EXPLANATORY STATEMENT

In advanced contemporary societies, the degree achieved in the automation of information is such that the development of information is not conceived without a parallel advance of computer science. The versatility, agility and security of computerized data processing are today imponderable fundamentals of the so-called "information society".

For this reason, the legal systems currently devote special attention to the protection of the creation of computer programs and to the simultaneous pursuit of the widespread phenomenon of computer hacking.

Currently, the protection in our country of computer programs is found in Law 22/1987, of November 11, of Intellectual Property, which declares which are the exclusive rights of the authors and establishes the procedures for their protection.

Following this Law is the Council Directive of 14 May 1991 on the legal protection of computer programs (91/250/EEC), whose incorporation into our legal order is proposed in this Law. The purpose of this Directive is to abolish some of the existing differences in the legal protection of computer programmes which provide the legislation of the Member States of the Community; in particular, it wishes to abolish those differences which produce direct negative effects on the functioning of the common market. The Directive takes into account, for these purposes, the growing importance of computer programs in a wide range of sectors, which, consequently, requires the consideration of computer technology as of crucial interest to the industrial development of the European Community.

The incorporation of the Directive into the Spanish legal order does not pose excessive problems, since the vast majority of the provisions contained in it are contemplated, albeit with other wording, in Title VII of Book I of the Law of Intellectual Property. On the other hand, the few modifications introduced by this Law into the system of this Law are intended to be clarified, regularized and harmonised in the recast text that the Government will have to issue in the field of Intellectual Property.

The Law is divided into nine articles that correspond to those of the Directive that is transposed. It is supplemented by an additional provision, a transitional provision, a derogation and a final.

The text takes care of the object and the subjects of the protection. The description of the object identifies the amparo that is given to the computer programs with which it is offered to the literary works. The incorporation of the preparatory documents into our legislation is also included as if they were computer programs in order to provide them with identical protection, as well as the express exclusion of the protection of ideas and principles. on which the programme is based.

For the purposes of this Law, it is understood by any device, physical or logical, that allows the connection by facilitating the exchange of information between two teams or between equipment and user.

Regarding the subjects and beneficiaries of the protection, a regulation similar to that of the Law on Intellectual Property is established, which in the case of the beneficiaries is limited to a referral to it.

The Law of transposition takes up both the rights that constitute the content of the protection and the exceptions to it. As far as the former are concerned, the reproduction, processing and distribution of computer programmes with the same tenor as the Directive, which is, on the other hand, analogous to the Directive, are subject to the conduct and authorization of the author. of the Law on Intellectual Property.

As regards the exceptions to the rights recognised, they are based on the concept of necessity for the use introduced by the Directive in Article 5, as well as the distinction between the exceptions available for contractual clauses and those that are not modifiable by the autonomy of the will. An article of special relevance is the sixth, in which a new concept is collected for our Order as is that of interoperability. The wording of the directive also seeks to convert the prohibitive terminology of the Directive into a positive one, more easily understandable, and the wording of which is similar to that of the relevant wording of the Berne Convention.

For the purposes of this rule, the ability of computer programs to exchange information and to use mutually exchanged information is understood.

Regarding the duration of the protection, the Law makes an express reference to the duration and the calculation of the time limits laid down in Article 97 of the Law on Intellectual Property, in the event that the author is a legal person, and to this same article in combination with the 26 of that Law, when the author is a natural person.

This regulation will be maintained, as indicated in the Directive itself, until further Community harmonisation of the periods of protection takes place.

With regard to special protection measures, three types of offenders are contemplated that the Law on Intellectual Property did not expressly collect. It lists the measures that can be taken against them by both the affected and the Judge. This is a reference to the general part of the Law on Intellectual Property, which is extended with certain measures not provided for in the Law. These include, as an effective means of combating piracy in this area, the possibility that the Judge may be given in Article 9 so that, prior to the adoption of the precautionary measures, he may require the reports or order the investigations which it considers appropriate, in order to obtain the necessary evidence-on the other hand, which is so easy to destroy in the matter at hand-for the procedure.

The additional provision contains the principle of the Directive on the non-exclusion of other types of protection in addition to that offered by this Law.

The transitional provision refers to the possibility of applying the new system of copyright in the field of computer programs to programs created prior to the entry into force of the Law.

The repeal provision does not mention in any way those that might be repealed, as soon as a complete table of derogations is established when the recast text on Intellectual Property is drawn up,

The final provision first deals with the entry into force of the Act.

The second final provision contains a legislative enablement to the Government until June 30, 1995 to issue a recast text containing the existing rules on Intellectual Property.

Article 1. Purpose of the protection.

1. Computer programs shall be protected by copyright as literary works as defined in the Berne Convention for the Protection of Literary and Artistic Works.

2. For the purposes of this Law, the expression 'computer programs' shall also include its preparatory documentation.

3. The computer program will be protected only if it were original, in the sense of being an intellectual creation of its author.

4. The protection provided for in this Law shall apply to any form of expression of a computer program, except those created for the purpose of causing harmful effects to a computer system. The ideas and principles on which any element of a computer program is based, including those which serve as the basis for its interfaces, shall not be protected by copyright under this Law.

Article 2. Entitlement to rights.

1. The person or group of natural persons who have created it, or the legal person who is referred to as the owner of the copyright in the cases expressly provided for by the Law on Property, shall be considered the author of the computer program. Intellectual.

2. In the case of collective works, the author shall be considered, unless otherwise agreed, by the natural or legal person who is editing and divulging it under his name.

3. The copyright on a computer program that is a unit result of the collaboration between several authors will be common property and will correspond to all of these in the proportion that they determine.

4. Where an employee creates a computer program, in the performance of the duties entrusted to him or following the instructions of his employer, the ownership of the economic rights corresponding to the computer program Thus created-both the source programme and the programme-will correspond exclusively to the employer, unless otherwise agreed.

Article 3. Beneficiaries of protection.

Protection shall be granted to all natural and legal persons who comply with the requirements of the Intellectual Property Law for the protection of copyright.

Article 4.

Acts subject to restrictions.

Subject to the provisions of Articles 5 and 6, the exclusive rights of the holding of the computer program by the holder in accordance with Article 2 shall include the right to make or to authorize:

(a) The total or partial reproduction of a computer program by any means and in any form, whether permanent or transitory. Where the loading, presentation, execution, transmission or storage of a programme requires such reproduction, authorisation shall be provided for this to be granted by the rightholder.

(b) The translation, adaptation, arrangement or other transformation of a computer program and the reproduction of the results of such acts, without prejudice to the rights of the person who transforms the computer program.

c) Any form of public distribution including the rental of the original computer program or its copies. The first sale in the Community of a copy of a programme by the rightholder or with his consent shall exhaust the right of distribution of such copy, except for the right to control the subsequent rental of the programme or of a copy of the itself.

Article 5. Exceptions to acts subject to restrictions.

1. They shall not require the authorisation of the holder, unless otherwise specified in the contract, the reproduction or processing of a computer program including the correction of errors, where such acts are necessary for the use of the same by part of the legitimate user, in accordance with its intended purpose.

2. The performance of a backup by the person who is entitled to use the programme shall not be prevented by contract as soon as it is necessary for such use.

3. The legitimate user of the copy of a programme shall be entitled to observe, study or verify its operation, without prior authorisation of the holder, in order to determine the ideas and principles implicit in any element of the programme, whenever you do so during any of the load, display, execution, transmission, or storage operations of the program you have the right to do.

Article 6. Decompilation.

1. The authorisation of the right holder shall not be required where the reproduction of the code and the translation of its form within the meaning of Article 4 (a) and (b) of this Law is indispensable for obtaining the information necessary for the interoperability of a program created independently with other programs, provided that the following requirements are met:

(a) that such acts are performed by the legitimate user or by any other person empowered to use a copy of the program, or, on his behalf, by a duly authorized person;

(b) that the information necessary to achieve interoperability has not been previously and easily and quickly made available to the persons referred to in the preceding point;

(c) such acts shall be limited to those parts of the original programme which are necessary to achieve interoperability.

2. The derogation provided for in paragraph 1 of this Article shall apply provided that the information thus obtained:

a) is used only to achieve the interoperability of the independently created program;

b) only be communicated to third parties where necessary for the interoperability of the independently created program, and

c) is not used for the development, production or marketing of a substantially similar program in its expression, or for any other act that infringes copyright.

3. The provisions of this Article shall not be interpreted in such a way as to allow their application to adversely affect the legitimate interests of the rightholder or to be contrary to a normal exploitation of the programme. computer.

Article 7. Duration of protection.

The rights recognized in this Law will be protected in the terms established in article 97 of the Law on Intellectual Property in the event that the author is a legal person and during the life of the author and fifty years after the death or death declaration of the same or the last surviving co-author when he is a natural person.

When the computer program is an anonymous work or under pseudonym, the term of protection will be fifty years from the time it was first legally placed at the disposal of the public, considering that the deadline of protection begins on 1 January of the year following that of this event.

Article 8. Infringement of rights.

For the purposes of this Law and without prejudice to the provisions of Articles 5 and 6 thereof, it shall be for the consideration of copyright offenders who, without the authorization of the owner of the rights, carry out the acts provided for in Article 4 and in particular:

(a) those who put in circulation one or more copies of a computer program knowing or being able to presume their illegitimate nature,

(b) who have for commercial purposes one or more copies of a computer program, knowing or being able to presume their illegitimate nature, or

(c) those who put into circulation or for commercial purposes any means whose sole use is to facilitate the unauthorized deletion or neutralisation of any technical device used to protect a programme of computer.

Article 9. Special protective measures.

1. The holder of the rights recognized by this Law, without prejudice to other actions that correspond to him, may urge the cessation of the unlawful activity of the offender, require compensation in accordance with the material and moral damages caused, and ask the judge to adopt precautionary measures of emergency protection in the terms of Title I of Book III of the Law on Intellectual Property.

2. For the purposes of this Law, and prior to the transfer to the parties of the written request for precautionary measures, as provided for in Article 127 of the Law on Intellectual Property, the Judge may require the reports or order the investigations that considers appropriate.

3. The precautionary measures for the urgent protection of copyright may include the abduction of the means referred to in Article 8 (c) in the terms established by Article 126 of the Law on Intellectual Property.

4. The cessation of the illicit activity may include the use of and, if necessary, the destruction of the instruments referred to in the preceding number.

Single additional disposition. Safeguard for the application of other legal provisions.

The provisions of this Law shall be without prejudice to any other legal provisions such as those relating to patent rights, trade marks, unfair competition, trade secrets, product protection semiconductors or the right of obligations.

Single transient arrangement. Effectiveness of the Law.

The provisions of this Law shall apply to the programs created prior to the entry into force of the Law, without prejudice to the acts already performed and the rights already acquired before such date.

Single repeal provision. Regulatory repeal.

All provisions of equal or lower rank that are contrary to the provisions of this Law shall be repealed.

Final disposition first. Entry into force of the Law.

This Law shall enter into force on the day following that of its publication in the Official Journal of the State.

Final disposition second. Legislative enablement to the Government.

The Government is authorized to approve, before 30 June 1995, a text based on the legal provisions on Intellectual Property that are in force for the entry into force of this Law, regularizing, clarifying and harmonizing the legal texts to be recast.

Therefore,

I command all Spaniards, individuals and authorities to keep and keep this Law.

Madrid, 23 December 1993.

JOHN CARLOS R.

The President of the Government,

FELIPE GONZÁLEZ MARQUEZ