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EC developments in IT law
I.).E.v LL, OPNI..t. .N I INTRODUCTION This is the third year of publication of Baker & McKenzie's column on EC Developments in IT Law. Following our usual practice at the beginning of a year, the whole table is reproduced in this edition to give a complete picture of the relevant existing and proposed EC measures. There has been a change to the format in that the next edition will only contain a description of the main EC proposals or as yet unimplemented legislation. A summary in tabular form clearly highlighting changes will appear in the following edition. These arrange-
........ I N o .=
ments will then continue thereafter. Those measures which are already enacted and the implementation dates for which have passed (which are indicated by a '*' in the first column) will not normally be included in the reprints unless there are any new developments relating to them. As a reminder, the first column is a general description of the measure or draft measure; the second is the formal reference in the Official Journal of the European Communities, the reference being to the original proposal, if it is still in draft, or to the final measure, if it has
vv
been enacted. The status is either that it has been enacted, or the progress (if any) it has made through the legislative procedures of the EC. The last column gives the implementation date required of the Member States. In the case of draft measures, this is obviously subject to change. It should be noted that the implementation date in a directive is that required by the directive: not all member states implement on time. Where the United Kingdom is delinquent, however, or where there are other known problems of implementation, we shall aim to state them.
A. INTELLECTUAL PROPERTY ~N
~
g~
1. Copyright Directive 91/250 on the Legal Protection of Computer Programs*
OJ 1991 L122/42
Adopted 14 May 1991
1 January 1993
Council Resolution: Accession of Member States to the Rome and Berne Conventions
OJ 1992 C138/1
Adopted 14 May 1992 in substitution for proposed Council Decision OJ 1992 C57/13
1 January 1995
Directive 92/100 on Rental and Lending Rights and Certain Rights Relating to Copyright*
OJ1992 L346/61
Adopted 19 November 1992
1 July 1994
Directive 93/98 on Term of Protection of Copyright
OJ 1993 L290
Adopted 29 October 1993
1 July 1995. Implementedfrom 1 Jan 1996 by SI 1995 No.3297
Proposed Directive on Legal Protection of Databases
OJ 1993 C308/1 OJ 1995 C288/14
A common position was adopted on 10 July 1995
Proposed as 1 January 1998
2. Patents Community Patent Convention (Luxembourg convention) (amended)
OJ 1976 L17/1
Signed 15 December 1975
Not yet ratified by all Member States
Proposals still under discussion
Likely to be 1998
Amended draft was approved at its first hearing by the European Parliament on 12 October 1995. Amended proposals awaited.
To be decided but proposed as 31 October 1996
3. Designs Legal Protection of Industrial Design (Community Design) Green Paper 1991
III/F/5131/91
Proposed regulation
COM 93/344 final
Green Paper on Utility Models Com (95)370
Green Paper was produced by the Commission in July 1995 43
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I1996] 12 C[.SR
4. Trademarks Directive 89/104 on Approximation of the laws of Member States relating to Trademarks*
OJ 1989 L40/1
Adopted 21 December 1988
28 December 1991
Council Decision 92/10 postponing implementation of Directive 89/104 (see above)*
OJ 1992 L6/35
Adopted 19 December 1991
Postponed until 31 December 1992
OJ 1994 L011
Regulation adopted on 21 December 1993
The Community Trade Mark Office is to begin taking applications on 1 January 1996 and opens for business on 1 April 1996
Council Regulation on Community i Trademarks
OJ 1980 C351 OJ 1984 C230 Commission Proposal COM (80) 635 as amended by COM (84) 470 and COM (92) 443 5. Topography Rights Directive 87/54 on the legal protection of topographies of Semiconductor Products*
OJ 1987 L24/36
Adopted 16 December 1986
7 November 1987
Decision 90/150 extending scope of Directive 87/54 to (inter alia) natural persons and certain legal persons in listed territories (amended by Decision 93/17)*
OJ 1990 L285/29
Adopted 9 October 1990
8 November 1990
Decision 90/511 extending protection under Directive 87/54 to USA (as amended by Decision 90/541)*
OJ 1990 L285/31
Adopted 9 October 1990
8 November 1990
Council Decision on extension of the legal protection of topographies of semi-conductor products to persons from a member of the World Trade Organisation
OJ L349/86 Decision 94/824
Made 22 December 1994
1 January 1996
B. PERSONAL DATA
!
Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and free movement of such data
OJ 1992 C311/04 OJ 1995 L281/31
Adopted 24 October 1995
Amended Proposed Directive concerning the protection of personal data and privacy in the context of public digital telecommunications networks (COM 94 (128))
OJ 1994 C200
Under discussion
By 24 October 1998
44
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THE COMPUTER LAW AND SECURITYREPORT
[1996] 12 CLSR
C. COMPETITION LAW n~
Commission Notice of 19 December 1977 on Agreements of Minor Importance*
OJ 1977
Exclusive Purchasing Agreements Block Exemption Reg 1984/83"
OJ 1983,
Exclusive Distribution Agreements
OJ 1983
--
. . . .
.. . . .
In force
C313/3
Adopted 22 June 1983
Directly applicable
Adopted 22 June 1983
Directly applicable
L 173/5
L173/1
Block Exemption Reg 1983/83" Patent Licensing Block Exemption Reg 2349/84*
OJ 1984
Adopted 23 July 1984. Expires end December 1995
Directly applicable
L219/15
Block Exemption for R&D Cooperation Agreements Reg 418/85"
OJ 1985 L53/5
Adopted 19 December 1984
Directly applicable
Know-how Licence Block Exemption Reg 556/89*
OJ 1988 L61/1
Adopted 30 November 1988
Directly applicable
Franchising Agreements Block Exemption Reg 4087/88*
OJ 1988
Adopted 30 November 1988
1 February 1989
Merger Control Reg 4064/89
OJ 1989
Adopted 21 December 1989
21 September 1990
Adopted 25 July 1990
21 September 1990
Directly applicable
L359/46
L359/1 as supplemented by Reg 2367/90*
OJ 1990
L219/5 Regulation extending R&D, patent and know-how block exemption to Joint Ventures. Reg 151/93"
OJ 1993 L21/8
Adopted 23 December 1992
Technology Transfer Block Exemption Regulation
OJ 1994 C178/3 with minor amendments in OJ 1994 C187/16
Draft has been withdrawn
D. ENVIRONMENT/HEALTH & SAFETY •
Council Directive 90/270 concerning the minimum safety and health requirements for work and display screen equipment*
OJ 1990
~l
|'
Adopted 29 May 1990
L156/14
45
31 December 1992
tJ\~ t~li:i~
(Y)i~i!:~.ifi.:i~ I.A\V ~'~i.).:,/.~ ~ll ~ i:~!.:if:~()I-~'t
E. PRODUCT LIABILITY
Directive 84/450 on misleading advertising*
OJ 1984 L250/17
Adopted 1() September 1984
23 May 1988
Amended proposal for a directive concerning comparative advertising and amending Directive 84/450 relating to misleading advertising
OJ 1994 C136/4
Council of Consumer Ministers reached common position on 9 November 1995
Directive 85/374 on liability for Defective Products*
OJ 1985 L210/29
Adopted 25 July 1985
31 December 1992
Directive on Unfair Contract Terms in Consumer Contracts, as amended
OJ 1990 C243, OJ 1992 C73/7
Adopted 5 April 1993
1 July 1995
Proposed Directive on Liability for Defective Services
OJ 1991 C12
Draft Directive dropped end of 1993 on subsidiarity grounds
N/A
Directive 92/59 on general product safety*
OJ 92 L228/24
Adopted 29 June 1992
29 June 1994
F. STANDARDIZATION • " mmllimlllmlmw/Jl!
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"~ "i ." " " ~; '/.g2".~z.eA.,.'.;.~.~ IIINIIBNlliiNN NI
Directive 83/189 on notification of draft standards (as amended)*
OJ 1983 L109/8 OJ 1988 L81/75
Communication on responses issued. Recommended less radical future action. Adopted 28 March 1983, amended 22 March 1988
28 March 1984
Council Resolution on "New Approach to Technical Harmonization Standards"*
OJ 1985 C136/1
Adopted 7 May 1985
N/A
Council Decision 87/95 on standardization in the field of information technology and telecommunications*
OJ 1987 L36/31
Adopted 22 December 1986
February 1987
Proposed Council Recommendation on Common Information Technology Security Evaluation Criteria and ECOSOC Opinion of 27 January 1993
95/144/EC
Adopted 7 April 1995
Directive 89/336 on Electromagnetic Compatibility* Directive 92/31 amending Electromagnetic Compatibility Directive 89/336*
OJ 1989 L139/19
Adopted 3 May 1989
OJ 1992 L126/11
Adopted 28 April 1992 46
1 January 1989
1 January 1992
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THE COMPUTER LAW AND S{'.;CURI~~'REPORT
{t996] 1<2 Ct.SR
G. PUBLIC PROCUREMENT
Council Directive 93/37/EEC coordinating procedures for the award of public works contracts*
OJ 1993 L 199/54
Adopted 14 June 1993
Had immediate effect
Council Directive 93/38/EEC coordinating procedures of entities operting in the excluded sectors (water, energy, transport and telecommunications)*
OJ 1993 L199/84
Adopted 14 June 1993
1 July 1994
Council Directive 93/36/EEC coordinating procedures for the award of public supply contracts*
OJ 1993 L199/1
Adopted 14 June 1993
14 June 1994
Council Recommendation 86/659 on the coordinated introduction of an Integrated Services Digital Network (ISDN)*
OJ 1986 L382/86
Adopted 22 December 1986
Directive 86/361 on the initial stage of mutual recognition of type approval for terminal equipment*
OJ 1986 L217/21
Adopted 24 July 1986
24 July 1987
Directive 88/301 on competition in the internal market for terminal equipment*
OJ 1988 L131/73
Adopted 16 May 1988
In force
Council Resolution on development of a Common Market for telecoms up to 1992"
OJ 1988 C257/1
Adopted 30 June 1988
N/A
Council Resolution on the strengthening of the coordination of the ISDN for the introduction in the Community up to 1992"
OJ 1989 C 196/4
Adopted 18 July 1989
N/A
Directive 91/263 on mutual recognition of terminal equipment*
OJ 1990 L128
Adopted 29 April 1991
6 November 1992
Directive 90/387 on the creation of a market for telecoms services through Open Network Provisions
OJ 1990 Ll92
Adopted on 28 June 1990
1 January 1991
H. TELECOMMUNICATIONS
(ONP)* 47
J~\N ~fEB
I'HI.I C(.)~IPLITER I...,¢%.= AND S[IC[IRITY REPORT Adopted 28 June 199(1
Directive 90/388 on competition in the market for telecoms services j
OJ 1990 L192/10
Directive 90/388 amended by Satellite Directive 94/46 and Cable Television Directive 95/51
OJ L268/15
Commission Communication on further liberalization of European telecommunications of April 1993 followed by Council Resolution of 22 July 1993 on the review of the situation in the telecoms sector and the need for further developments in that market
OJ 1993 C213/01
Proposed Council Directive on the Mutual Recognition of Licences and other national authorizations to operate telecommunications services (COM (92)254)
OJ 1992 C248 as amended by OJ 1994 C108
31 December 1990
August 1995
OJ L256/49
Adopted 18 October 1995. Comes into force 1 January 1996 Full liberalization of public voice telephony services planned for January 1998 subject to various derogations to Spain, Ireland, Greece and Portugal for up to five years and, where justified, a derogation of up to two years for very small networks (e.g. Luxembourg) Amended proposal adopted by the Council in April 1994
Draft adopted 14 November 1995
Replaced by draft Proposal on Common Framework for general authorizations and individual licences in telecommunications services (Com (95) 158) Proposed Council Directive on the application of Open Network Provision (ONP) to voice telephony (COM(92)247 as amended by COM(93) 182 and COM(94) 48) now (Corn (94) 689)
It996] 117 CI.SR
OJ 1995 C122
Amended proposal adopted by Telecoms Ministers on 27 November 1995
Expected to be implemented within one year
In November 1992 the ECJ ruled, rejectingarguments by several Member States, that the Commission had not exceeded its powers by abolishing service monopolies on the basis of this Directive. This followed a similar case in relation to Directive 88/301.
I. MEDIA/BROADCASTING "
European Convention on transborder television* Directive 89/552 on crossborder television - the "Television Without Frontiers" Directive*
OJ 1989 L298/23
"÷
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•
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:?~:8:'.,3,
Ratified
Entered into effect on 1 May 1993
Adopted 3 October 1989
3 October 1991
48
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I1996] 12 CII,SR
Directive 93/83 on copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission
COM (92) 526 OJ 1993 L248
Adopted 27 September 1993
Directive 92/38 on the adoption of Mac-Packet standards for satellite broadcasting of television signals*
OJ 1992 L137/17
Adopted 11 May 1992
Green Paper on Strategy options to strengthen the European programme Industry in the context of the audiovisual policy of the European Union. Green Paper on copyright and related rights in the Information Society (Com (95) 382)
OJ 1993 L248
Adopted 27 September 1993 Responses were due on 31 October 1995 but an informal extension has been given until the end of 1995
1 January 1995
1 January 1995
Responses were due on the 31 October but an informal extension has been granted until the end of 1995
Green Paper on copyright and related rights in the Information Society (Corn (951) 382) EC L E G I S L A T I O N
-
SUMMARY
Set out below is a short summary of the main provisions referred to in the table. A. INTELLECTUAL PROPERTY
- The Directive on the protection of computer software provides that Member States are to protect computer programs as literary works within the meaning of the Berne Convention. For this purpose the term 'computer programs' includes preparatory design material. The standard of originality under the Directive is that it must be original in the sense that it is the author's own intellectual creation. The Directive includes several important limitations on the copyright owner's rights in relation to lawful users making back-up copies and reverse engineering for the purposes of achieving interoperability. A rental right for software is also required. - The Resolution on the Accession of Member States to the Rome and Berne Conventions is designed to ensure that the Member States' obligations under international treaties relating to copyright (including the protection of films, sound record-
ings and the like) are the same. The Directive on Rental and Lending Rights harmonizes certain areas of sound recording and film rights and requires Member States to provide a rental right in respect of certain copyrights. The UK, like most of the EC is late in implementing the Directive. Draft regulations have been circulated by the DTI, who are working on further amendments. - The Directive on the Term of Copyright will require Member States to provide a copyright term for the life of the author plus 70 years. Other copyright terms are also harmonized. The Regulations to implement it were laid before Parliament in November and are expected to come into force in January 1996 once approval from both Houses has been given. - T h e Draft Directive on the Legal Protection of Databases will harmonize protection of databases. Databases which are original (in the sense of the Software Directive) in their selection or arrangement will enjoy copyright protection; other databases will enjoy protection only through a 15 year right to forbid unlawful extraction, outside the law
-
-
49
of copyright. A common position on the current draft was adopted in July 1995. - The Community Patent Convention will, if ratified by the Member States, provide for a single EC patent valid throughout the whole Community, rather than the bundle of national rights produced by the European Patent Convention (which unifies the substantive patent law of the EC and other European Countries). - T h e draft directive on the Legal Protection of Designs, if enacted, will harmonize the individual Member States' laws on the protection of industrial designs. It will also harmonize most of the Member States' laws relating to infringement of designs, and place limitations on, but not abolish completely, the rights of design owners to use their intellectual property rights to prevent the production of spare parts for their products. An amended draft dealing notably with renumeration rights was approved at its first hearing by the European Parliament in October and amended proposals should be issued shortly. - The draft regulation on the Legal
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THE COHPUTER LAW AND SECURITY REPORT
Protection of Designs will impose a unified EC-wide design. It will be necessary to register at the EC Designs office, probably to be situated at the same place as the proposed Trade Marks Registry in Alicante. There will be a much shorter period of protection for unregistered designs. - T h e Directive and Regulation on Trade Marks are the same in intent as the proposed directive and regulation on designs; the Directive is designed to harmonize the Member States' substantive law relating to their own national trademarks and the Regulation will introduce an ECwide trademark. The UK implemented the Directive through the Trade Marks Act 1994, which came into force on 1 November 1994. The Community Trade Mark Office will start taking applications in January 1996 and will open for business in April 1996. - The Semiconductor Topography Rights Directive harmonizes the laws of the Member States in the protection of semiconductor topographies. The method of implementation is left to the Member States (the UK implements through the unregistered design right in the Copyright, Designs and Patents Act 1988, as amended by express regulation to disapply the compulsory licence provisions). The principal purpose of the measure was to ensure reciprocal protection of EC topographies in the USA, although protection to other countries' topographies is granted on the basis of reciprocity.
B. PERSONAL DATA The (many times amended) proposal of November 1992 for a general (framework) directive aimed at ensuring the protection of the privacy of individuals in relation to the processing of personal data was finally adopted in July. The Directive sets out a framework for a package of measures designed to ensure protection for personal data in the EU and the free flow of information. Implementing this Directive will require the Data Protection Act 1984 to be amended. In August 1994 the Commission issued a modified amended proposal for a Directive on the Protection of Personal Data
and Privacy in the context of Public Digital Telecommunications. The proposed Directive aims to regulate the activities of licensed operators of public telecommunications operations, including obligations to terminate unsolicited sales calls and call forwarding procedures. This proposal was discussed by Council working groups in September and is due to be discussed further shortly.
C. COMPETITION LAW The EC's activities in the sphere of competition law regulation are wellknown and the table lists the principal measures, all of which have direct effect. The Patent Licensing Block Exemption (Reg 2349/84) was extended until 31 December 1995, whilst discussion continues on the draft Technology Transfer Block Exemption but is not expected to be extended further. The draft Technology Transfer Block Exemption is designed to replace both the Patent Licensing and Know-how block exemptions. The Commission sent an amended draft to member state governments in May, but this draft has now been withdrawn after the members failed to agree on its proposals. There has been no indication of when a further draft may be issued, although we understand informal discussions are continuing. D. ENVIRONMENT/HEALTH AND SAFETY Although the EC has been active in the field of health and safety law harmonization, the only proposal worthy of note in this field is the Display Screen Equipment Directive, which harmonizes Member States' laws on the technical standards for display screen workstations in use by a worker - defined as an employee who habitually uses display screen equipment as a significant part of his/her normal work. The term 'display screen equipment' covers alphanumeric or graphic display screens of various types, and includes (but is not limited to) VDUs in offices. E. PRODUCT LIABILITY A common position as to the content of the proposed directive on comparative advertising was reached in November 1995. The proposal would have less impact in the UK if adopted following
50
[I 996] 12 CLSR
the UK Trade Marks ACt 1994, which has simplified the trademark restrictions on comparative advertising originally set out in the Trade Marks Act 1938. Regulations to implement the Product Safety Directive in the UK (SI 1994 No. 2328) were issued on 5 September and came into force on 3 October. The Regulations cover those areas not already dealt with by existing legislation (mainly the Consumer Protection ACt 1987) such as second hand goods. Regulations to implement the Directive on Unfair Contract Terms in Consumer Contracts came into force on 1 July 1995, and applies to contracts from that date.
F. STANDARDIZATION The existence of differing technical regulations (as in the non-voluntary specifications laid down by law) and the differing national standards (as in the voluntary technical product specifications adopted by private national standards institutions such as BSI in the UK, AFNOR in France and DIN in Germany) that exist in the different Member States has historically created a barrier to the free movement of goods within the community. 'Standardization' is the term used to refer to the Community's commitment to eliminating both these legal and technical barriers which force manufacturers to tailor their products to meet the differing specifications in the different Member States, and to create instead a system of Community-Wide standards. ITSEC is the official set of criteria developed and harmonized by the UK, Germany, the Netherlands and France for use in the independent evaluation and verification of the security of information technology products and systems. Although in practice the criteria are used only by the four participating countries, other Member Sates have agreed to adopt the ITSEC principles. Accordingly, a Council Recommendation was adopted on 7 April 1995. The intention is the adoption criteria will promote the establishment of international mutual recognition of IT security evaluations. G. PUBLIC PROCUREMENT The Community public procurement regime has been consolidated and amplified and the three directives listed now
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T}-{E CO~vlPUT~:~Rl..kW AND SLC~.JRITY REPO~,U
constitute a complete and mandatory code of conduct for the award of IT and other contracts in the public sector. The UK remains delinquent in implementing the Directive coordinating procedures of entities operating in the excluded sectors. Regulations to implement it are expected to be put before Parliament sometime in the New Year.
H. TELECOMMUNICATIONS Following the Commission's Communication of April 1993 on the liberalization of telecoms in Europe the Council agreed a resolution in July 1993 setting out a timetable for liberalization of telephone services in the EC. The main objectives, to be achieved in two phases, from 1993 to 1995 and from 1996 to 1998 are: - consolidation of the current regulatory environment - common definition of universal service principles - development of a framework for interconnection agreements - independence of telecommunications organizations - creating a liberal environment for the international provision of telecoms services. The Proposed Directive on the mutual recognition of licences was replaced by a draft European Parliament and Council Directive on a common framework for general authorizations and individual licences in telecommunications services. This Directive is intended to facilitate access to telecoms markets throughout the EU for providers licensed in one
Member State. The proposal for the Directive was issued by the Commission on 14 November 1995. The first proposal for a Directive on the application of Open Network Provision to voice telephony was rejected by the European Parliament in its entirety in 1994. This was the first successful use of the European Parliament's post-Maastricht power to block legislation. The Commission issued a revised proposal which was adopted by the Telecommunications Ministers on 27 November 1995. The Directive aims to harmonize the regulatory arrangements relating to the supply and usage of voice telephony services.
I. MEDIA/BROADCASTING The "Television Without Frontiers '/ Directive was an important step in developing the EC broadcasting market. The purpose of the Directive is to encourage the production and distribution of television programmes throughout the Member States, not only by the creation of a market sufficiently large to render profitable the required investment, but also through requiring preferential treatment of EC works in the television programming of the various Member States. The Directive aims at the free circulation of television broadcasts within a single broadcasting market, in particular by satellite and cable. The UK is overdue in implementing the Directive on copyright and rights related to copyright applicable to satellite broadcasting. This was combined with the implementing regulations for the Direc-
{199{.~] 12 CLSR
tive on Rental and Lending Rights to become one Statutory Instrument. It is expected to be put before Parliament for approval sometime in the New Year. In July 1995 the Commission published a consultation paper aimed at seeking comments on the impact of new technology on the law of copyright. The Green Paper addresses the fundamental question of whether further harmonization of IPR law is required and if so in what manner. The Green Paper deals with nine areas of copyright law, including reproduction rights and digital dissemination or transmission rights.
EC CASE LAW In subsequent issues of the journal we shall be keeping readers aware of significant developments in the case law of the European Courts of Justice and of First Instance which might have a bearing on the IT industry
BOOK REVIEW INTERNET L A W Law on the Electronic Frontier, by lan Lloyd and Moira Simpson, 1995, soft-cover, Edinburgh University Press, £9.95, ISBN 0748605940. This text is published by Edinburgh University Press within the Hume Papers on Public Policy series. The David Hume Institute is a non-political organization aiming to promote discourse and research on economic and legal aspects of public policy questions. This contribution delves into the law governing the emerging information superhighway personified by the Internet. The approach taken by the authors is to compare the traditional Wild West cowboy movie with the concept of a digital frontier in cyberspace. The theme of the work is the difficulty of applying existing legal concepts to revolutionary change in communication. The work is
divided into five main sections, with a conclusion. These cover crime and the computer; the individual in the computer society; elements of data protection; intellectual property and the computer; and liability issues. Throughout the text, the authors successfully relate recent IT developments to the legal issues, identifying the concerns that future law makers will have to address in facing the challenge of the information superhighway. Available from Edinburgh University Press, 22 George Square, Edinburgh, EH8 9LF, UK, tel: +44 (0)131 650 4218 or fax: +44 (0)131 662 0053; or Marston Book Services Ltd, PO Box 87, Oxford, O X 2 0 D I : , UK tel: + 4 4 (0)1865 791155 or fax: + 4 4 (0)1865 791927.
51
........ I N o .=
ments will then continue thereafter. Those measures which are already enacted and the implementation dates for which have passed (which are indicated by a '*' in the first column) will not normally be included in the reprints unless there are any new developments relating to them. As a reminder, the first column is a general description of the measure or draft measure; the second is the formal reference in the Official Journal of the European Communities, the reference being to the original proposal, if it is still in draft, or to the final measure, if it has
vv
been enacted. The status is either that it has been enacted, or the progress (if any) it has made through the legislative procedures of the EC. The last column gives the implementation date required of the Member States. In the case of draft measures, this is obviously subject to change. It should be noted that the implementation date in a directive is that required by the directive: not all member states implement on time. Where the United Kingdom is delinquent, however, or where there are other known problems of implementation, we shall aim to state them.
A. INTELLECTUAL PROPERTY ~N
~
g~
1. Copyright Directive 91/250 on the Legal Protection of Computer Programs*
OJ 1991 L122/42
Adopted 14 May 1991
1 January 1993
Council Resolution: Accession of Member States to the Rome and Berne Conventions
OJ 1992 C138/1
Adopted 14 May 1992 in substitution for proposed Council Decision OJ 1992 C57/13
1 January 1995
Directive 92/100 on Rental and Lending Rights and Certain Rights Relating to Copyright*
OJ1992 L346/61
Adopted 19 November 1992
1 July 1994
Directive 93/98 on Term of Protection of Copyright
OJ 1993 L290
Adopted 29 October 1993
1 July 1995. Implementedfrom 1 Jan 1996 by SI 1995 No.3297
Proposed Directive on Legal Protection of Databases
OJ 1993 C308/1 OJ 1995 C288/14
A common position was adopted on 10 July 1995
Proposed as 1 January 1998
2. Patents Community Patent Convention (Luxembourg convention) (amended)
OJ 1976 L17/1
Signed 15 December 1975
Not yet ratified by all Member States
Proposals still under discussion
Likely to be 1998
Amended draft was approved at its first hearing by the European Parliament on 12 October 1995. Amended proposals awaited.
To be decided but proposed as 31 October 1996
3. Designs Legal Protection of Industrial Design (Community Design) Green Paper 1991
III/F/5131/91
Proposed regulation
COM 93/344 final
Green Paper on Utility Models Com (95)370
Green Paper was produced by the Commission in July 1995 43
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4. Trademarks Directive 89/104 on Approximation of the laws of Member States relating to Trademarks*
OJ 1989 L40/1
Adopted 21 December 1988
28 December 1991
Council Decision 92/10 postponing implementation of Directive 89/104 (see above)*
OJ 1992 L6/35
Adopted 19 December 1991
Postponed until 31 December 1992
OJ 1994 L011
Regulation adopted on 21 December 1993
The Community Trade Mark Office is to begin taking applications on 1 January 1996 and opens for business on 1 April 1996
Council Regulation on Community i Trademarks
OJ 1980 C351 OJ 1984 C230 Commission Proposal COM (80) 635 as amended by COM (84) 470 and COM (92) 443 5. Topography Rights Directive 87/54 on the legal protection of topographies of Semiconductor Products*
OJ 1987 L24/36
Adopted 16 December 1986
7 November 1987
Decision 90/150 extending scope of Directive 87/54 to (inter alia) natural persons and certain legal persons in listed territories (amended by Decision 93/17)*
OJ 1990 L285/29
Adopted 9 October 1990
8 November 1990
Decision 90/511 extending protection under Directive 87/54 to USA (as amended by Decision 90/541)*
OJ 1990 L285/31
Adopted 9 October 1990
8 November 1990
Council Decision on extension of the legal protection of topographies of semi-conductor products to persons from a member of the World Trade Organisation
OJ L349/86 Decision 94/824
Made 22 December 1994
1 January 1996
B. PERSONAL DATA
!
Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and free movement of such data
OJ 1992 C311/04 OJ 1995 L281/31
Adopted 24 October 1995
Amended Proposed Directive concerning the protection of personal data and privacy in the context of public digital telecommunications networks (COM 94 (128))
OJ 1994 C200
Under discussion
By 24 October 1998
44
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THE COMPUTER LAW AND SECURITYREPORT
[1996] 12 CLSR
C. COMPETITION LAW n~
Commission Notice of 19 December 1977 on Agreements of Minor Importance*
OJ 1977
Exclusive Purchasing Agreements Block Exemption Reg 1984/83"
OJ 1983,
Exclusive Distribution Agreements
OJ 1983
--
. . . .
.. . . .
In force
C313/3
Adopted 22 June 1983
Directly applicable
Adopted 22 June 1983
Directly applicable
L 173/5
L173/1
Block Exemption Reg 1983/83" Patent Licensing Block Exemption Reg 2349/84*
OJ 1984
Adopted 23 July 1984. Expires end December 1995
Directly applicable
L219/15
Block Exemption for R&D Cooperation Agreements Reg 418/85"
OJ 1985 L53/5
Adopted 19 December 1984
Directly applicable
Know-how Licence Block Exemption Reg 556/89*
OJ 1988 L61/1
Adopted 30 November 1988
Directly applicable
Franchising Agreements Block Exemption Reg 4087/88*
OJ 1988
Adopted 30 November 1988
1 February 1989
Merger Control Reg 4064/89
OJ 1989
Adopted 21 December 1989
21 September 1990
Adopted 25 July 1990
21 September 1990
Directly applicable
L359/46
L359/1 as supplemented by Reg 2367/90*
OJ 1990
L219/5 Regulation extending R&D, patent and know-how block exemption to Joint Ventures. Reg 151/93"
OJ 1993 L21/8
Adopted 23 December 1992
Technology Transfer Block Exemption Regulation
OJ 1994 C178/3 with minor amendments in OJ 1994 C187/16
Draft has been withdrawn
D. ENVIRONMENT/HEALTH & SAFETY •
Council Directive 90/270 concerning the minimum safety and health requirements for work and display screen equipment*
OJ 1990
~l
|'
Adopted 29 May 1990
L156/14
45
31 December 1992
tJ\~ t~li:i~
(Y)i~i!:~.ifi.:i~ I.A\V ~'~i.).:,/.~ ~ll ~ i:~!.:if:~()I-~'t
E. PRODUCT LIABILITY
Directive 84/450 on misleading advertising*
OJ 1984 L250/17
Adopted 1() September 1984
23 May 1988
Amended proposal for a directive concerning comparative advertising and amending Directive 84/450 relating to misleading advertising
OJ 1994 C136/4
Council of Consumer Ministers reached common position on 9 November 1995
Directive 85/374 on liability for Defective Products*
OJ 1985 L210/29
Adopted 25 July 1985
31 December 1992
Directive on Unfair Contract Terms in Consumer Contracts, as amended
OJ 1990 C243, OJ 1992 C73/7
Adopted 5 April 1993
1 July 1995
Proposed Directive on Liability for Defective Services
OJ 1991 C12
Draft Directive dropped end of 1993 on subsidiarity grounds
N/A
Directive 92/59 on general product safety*
OJ 92 L228/24
Adopted 29 June 1992
29 June 1994
F. STANDARDIZATION • " mmllimlllmlmw/Jl!
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N~zg-"~.'-::.~:~/.'~g~.-.~Y.~';'~,.~,.: ~"l'.
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"~ "i ." " " ~; '/.g2".~z.eA.,.'.;.~.~ IIINIIBNlliiNN NI
Directive 83/189 on notification of draft standards (as amended)*
OJ 1983 L109/8 OJ 1988 L81/75
Communication on responses issued. Recommended less radical future action. Adopted 28 March 1983, amended 22 March 1988
28 March 1984
Council Resolution on "New Approach to Technical Harmonization Standards"*
OJ 1985 C136/1
Adopted 7 May 1985
N/A
Council Decision 87/95 on standardization in the field of information technology and telecommunications*
OJ 1987 L36/31
Adopted 22 December 1986
February 1987
Proposed Council Recommendation on Common Information Technology Security Evaluation Criteria and ECOSOC Opinion of 27 January 1993
95/144/EC
Adopted 7 April 1995
Directive 89/336 on Electromagnetic Compatibility* Directive 92/31 amending Electromagnetic Compatibility Directive 89/336*
OJ 1989 L139/19
Adopted 3 May 1989
OJ 1992 L126/11
Adopted 28 April 1992 46
1 January 1989
1 January 1992
JAN - FEB
THE COMPUTER LAW AND S{'.;CURI~~'REPORT
{t996] 1<2 Ct.SR
G. PUBLIC PROCUREMENT
Council Directive 93/37/EEC coordinating procedures for the award of public works contracts*
OJ 1993 L 199/54
Adopted 14 June 1993
Had immediate effect
Council Directive 93/38/EEC coordinating procedures of entities operting in the excluded sectors (water, energy, transport and telecommunications)*
OJ 1993 L199/84
Adopted 14 June 1993
1 July 1994
Council Directive 93/36/EEC coordinating procedures for the award of public supply contracts*
OJ 1993 L199/1
Adopted 14 June 1993
14 June 1994
Council Recommendation 86/659 on the coordinated introduction of an Integrated Services Digital Network (ISDN)*
OJ 1986 L382/86
Adopted 22 December 1986
Directive 86/361 on the initial stage of mutual recognition of type approval for terminal equipment*
OJ 1986 L217/21
Adopted 24 July 1986
24 July 1987
Directive 88/301 on competition in the internal market for terminal equipment*
OJ 1988 L131/73
Adopted 16 May 1988
In force
Council Resolution on development of a Common Market for telecoms up to 1992"
OJ 1988 C257/1
Adopted 30 June 1988
N/A
Council Resolution on the strengthening of the coordination of the ISDN for the introduction in the Community up to 1992"
OJ 1989 C 196/4
Adopted 18 July 1989
N/A
Directive 91/263 on mutual recognition of terminal equipment*
OJ 1990 L128
Adopted 29 April 1991
6 November 1992
Directive 90/387 on the creation of a market for telecoms services through Open Network Provisions
OJ 1990 Ll92
Adopted on 28 June 1990
1 January 1991
H. TELECOMMUNICATIONS
(ONP)* 47
J~\N ~fEB
I'HI.I C(.)~IPLITER I...,¢%.= AND S[IC[IRITY REPORT Adopted 28 June 199(1
Directive 90/388 on competition in the market for telecoms services j
OJ 1990 L192/10
Directive 90/388 amended by Satellite Directive 94/46 and Cable Television Directive 95/51
OJ L268/15
Commission Communication on further liberalization of European telecommunications of April 1993 followed by Council Resolution of 22 July 1993 on the review of the situation in the telecoms sector and the need for further developments in that market
OJ 1993 C213/01
Proposed Council Directive on the Mutual Recognition of Licences and other national authorizations to operate telecommunications services (COM (92)254)
OJ 1992 C248 as amended by OJ 1994 C108
31 December 1990
August 1995
OJ L256/49
Adopted 18 October 1995. Comes into force 1 January 1996 Full liberalization of public voice telephony services planned for January 1998 subject to various derogations to Spain, Ireland, Greece and Portugal for up to five years and, where justified, a derogation of up to two years for very small networks (e.g. Luxembourg) Amended proposal adopted by the Council in April 1994
Draft adopted 14 November 1995
Replaced by draft Proposal on Common Framework for general authorizations and individual licences in telecommunications services (Com (95) 158) Proposed Council Directive on the application of Open Network Provision (ONP) to voice telephony (COM(92)247 as amended by COM(93) 182 and COM(94) 48) now (Corn (94) 689)
It996] 117 CI.SR
OJ 1995 C122
Amended proposal adopted by Telecoms Ministers on 27 November 1995
Expected to be implemented within one year
In November 1992 the ECJ ruled, rejectingarguments by several Member States, that the Commission had not exceeded its powers by abolishing service monopolies on the basis of this Directive. This followed a similar case in relation to Directive 88/301.
I. MEDIA/BROADCASTING "
European Convention on transborder television* Directive 89/552 on crossborder television - the "Television Without Frontiers" Directive*
OJ 1989 L298/23
"÷
".
•
.7
:?~:8:'.,3,
Ratified
Entered into effect on 1 May 1993
Adopted 3 October 1989
3 October 1991
48
IAN - FEB
T~-{ECOMPUTER LAW AND SECURITY REPORT
I1996] 12 CII,SR
Directive 93/83 on copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission
COM (92) 526 OJ 1993 L248
Adopted 27 September 1993
Directive 92/38 on the adoption of Mac-Packet standards for satellite broadcasting of television signals*
OJ 1992 L137/17
Adopted 11 May 1992
Green Paper on Strategy options to strengthen the European programme Industry in the context of the audiovisual policy of the European Union. Green Paper on copyright and related rights in the Information Society (Com (95) 382)
OJ 1993 L248
Adopted 27 September 1993 Responses were due on 31 October 1995 but an informal extension has been given until the end of 1995
1 January 1995
1 January 1995
Responses were due on the 31 October but an informal extension has been granted until the end of 1995
Green Paper on copyright and related rights in the Information Society (Corn (951) 382) EC L E G I S L A T I O N
-
SUMMARY
Set out below is a short summary of the main provisions referred to in the table. A. INTELLECTUAL PROPERTY
- The Directive on the protection of computer software provides that Member States are to protect computer programs as literary works within the meaning of the Berne Convention. For this purpose the term 'computer programs' includes preparatory design material. The standard of originality under the Directive is that it must be original in the sense that it is the author's own intellectual creation. The Directive includes several important limitations on the copyright owner's rights in relation to lawful users making back-up copies and reverse engineering for the purposes of achieving interoperability. A rental right for software is also required. - The Resolution on the Accession of Member States to the Rome and Berne Conventions is designed to ensure that the Member States' obligations under international treaties relating to copyright (including the protection of films, sound record-
ings and the like) are the same. The Directive on Rental and Lending Rights harmonizes certain areas of sound recording and film rights and requires Member States to provide a rental right in respect of certain copyrights. The UK, like most of the EC is late in implementing the Directive. Draft regulations have been circulated by the DTI, who are working on further amendments. - The Directive on the Term of Copyright will require Member States to provide a copyright term for the life of the author plus 70 years. Other copyright terms are also harmonized. The Regulations to implement it were laid before Parliament in November and are expected to come into force in January 1996 once approval from both Houses has been given. - T h e Draft Directive on the Legal Protection of Databases will harmonize protection of databases. Databases which are original (in the sense of the Software Directive) in their selection or arrangement will enjoy copyright protection; other databases will enjoy protection only through a 15 year right to forbid unlawful extraction, outside the law
-
-
49
of copyright. A common position on the current draft was adopted in July 1995. - The Community Patent Convention will, if ratified by the Member States, provide for a single EC patent valid throughout the whole Community, rather than the bundle of national rights produced by the European Patent Convention (which unifies the substantive patent law of the EC and other European Countries). - T h e draft directive on the Legal Protection of Designs, if enacted, will harmonize the individual Member States' laws on the protection of industrial designs. It will also harmonize most of the Member States' laws relating to infringement of designs, and place limitations on, but not abolish completely, the rights of design owners to use their intellectual property rights to prevent the production of spare parts for their products. An amended draft dealing notably with renumeration rights was approved at its first hearing by the European Parliament in October and amended proposals should be issued shortly. - The draft regulation on the Legal
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THE COHPUTER LAW AND SECURITY REPORT
Protection of Designs will impose a unified EC-wide design. It will be necessary to register at the EC Designs office, probably to be situated at the same place as the proposed Trade Marks Registry in Alicante. There will be a much shorter period of protection for unregistered designs. - T h e Directive and Regulation on Trade Marks are the same in intent as the proposed directive and regulation on designs; the Directive is designed to harmonize the Member States' substantive law relating to their own national trademarks and the Regulation will introduce an ECwide trademark. The UK implemented the Directive through the Trade Marks Act 1994, which came into force on 1 November 1994. The Community Trade Mark Office will start taking applications in January 1996 and will open for business in April 1996. - The Semiconductor Topography Rights Directive harmonizes the laws of the Member States in the protection of semiconductor topographies. The method of implementation is left to the Member States (the UK implements through the unregistered design right in the Copyright, Designs and Patents Act 1988, as amended by express regulation to disapply the compulsory licence provisions). The principal purpose of the measure was to ensure reciprocal protection of EC topographies in the USA, although protection to other countries' topographies is granted on the basis of reciprocity.
B. PERSONAL DATA The (many times amended) proposal of November 1992 for a general (framework) directive aimed at ensuring the protection of the privacy of individuals in relation to the processing of personal data was finally adopted in July. The Directive sets out a framework for a package of measures designed to ensure protection for personal data in the EU and the free flow of information. Implementing this Directive will require the Data Protection Act 1984 to be amended. In August 1994 the Commission issued a modified amended proposal for a Directive on the Protection of Personal Data
and Privacy in the context of Public Digital Telecommunications. The proposed Directive aims to regulate the activities of licensed operators of public telecommunications operations, including obligations to terminate unsolicited sales calls and call forwarding procedures. This proposal was discussed by Council working groups in September and is due to be discussed further shortly.
C. COMPETITION LAW The EC's activities in the sphere of competition law regulation are wellknown and the table lists the principal measures, all of which have direct effect. The Patent Licensing Block Exemption (Reg 2349/84) was extended until 31 December 1995, whilst discussion continues on the draft Technology Transfer Block Exemption but is not expected to be extended further. The draft Technology Transfer Block Exemption is designed to replace both the Patent Licensing and Know-how block exemptions. The Commission sent an amended draft to member state governments in May, but this draft has now been withdrawn after the members failed to agree on its proposals. There has been no indication of when a further draft may be issued, although we understand informal discussions are continuing. D. ENVIRONMENT/HEALTH AND SAFETY Although the EC has been active in the field of health and safety law harmonization, the only proposal worthy of note in this field is the Display Screen Equipment Directive, which harmonizes Member States' laws on the technical standards for display screen workstations in use by a worker - defined as an employee who habitually uses display screen equipment as a significant part of his/her normal work. The term 'display screen equipment' covers alphanumeric or graphic display screens of various types, and includes (but is not limited to) VDUs in offices. E. PRODUCT LIABILITY A common position as to the content of the proposed directive on comparative advertising was reached in November 1995. The proposal would have less impact in the UK if adopted following
50
[I 996] 12 CLSR
the UK Trade Marks ACt 1994, which has simplified the trademark restrictions on comparative advertising originally set out in the Trade Marks Act 1938. Regulations to implement the Product Safety Directive in the UK (SI 1994 No. 2328) were issued on 5 September and came into force on 3 October. The Regulations cover those areas not already dealt with by existing legislation (mainly the Consumer Protection ACt 1987) such as second hand goods. Regulations to implement the Directive on Unfair Contract Terms in Consumer Contracts came into force on 1 July 1995, and applies to contracts from that date.
F. STANDARDIZATION The existence of differing technical regulations (as in the non-voluntary specifications laid down by law) and the differing national standards (as in the voluntary technical product specifications adopted by private national standards institutions such as BSI in the UK, AFNOR in France and DIN in Germany) that exist in the different Member States has historically created a barrier to the free movement of goods within the community. 'Standardization' is the term used to refer to the Community's commitment to eliminating both these legal and technical barriers which force manufacturers to tailor their products to meet the differing specifications in the different Member States, and to create instead a system of Community-Wide standards. ITSEC is the official set of criteria developed and harmonized by the UK, Germany, the Netherlands and France for use in the independent evaluation and verification of the security of information technology products and systems. Although in practice the criteria are used only by the four participating countries, other Member Sates have agreed to adopt the ITSEC principles. Accordingly, a Council Recommendation was adopted on 7 April 1995. The intention is the adoption criteria will promote the establishment of international mutual recognition of IT security evaluations. G. PUBLIC PROCUREMENT The Community public procurement regime has been consolidated and amplified and the three directives listed now
JkN .. FEB
T}-{E CO~vlPUT~:~Rl..kW AND SLC~.JRITY REPO~,U
constitute a complete and mandatory code of conduct for the award of IT and other contracts in the public sector. The UK remains delinquent in implementing the Directive coordinating procedures of entities operating in the excluded sectors. Regulations to implement it are expected to be put before Parliament sometime in the New Year.
H. TELECOMMUNICATIONS Following the Commission's Communication of April 1993 on the liberalization of telecoms in Europe the Council agreed a resolution in July 1993 setting out a timetable for liberalization of telephone services in the EC. The main objectives, to be achieved in two phases, from 1993 to 1995 and from 1996 to 1998 are: - consolidation of the current regulatory environment - common definition of universal service principles - development of a framework for interconnection agreements - independence of telecommunications organizations - creating a liberal environment for the international provision of telecoms services. The Proposed Directive on the mutual recognition of licences was replaced by a draft European Parliament and Council Directive on a common framework for general authorizations and individual licences in telecommunications services. This Directive is intended to facilitate access to telecoms markets throughout the EU for providers licensed in one
Member State. The proposal for the Directive was issued by the Commission on 14 November 1995. The first proposal for a Directive on the application of Open Network Provision to voice telephony was rejected by the European Parliament in its entirety in 1994. This was the first successful use of the European Parliament's post-Maastricht power to block legislation. The Commission issued a revised proposal which was adopted by the Telecommunications Ministers on 27 November 1995. The Directive aims to harmonize the regulatory arrangements relating to the supply and usage of voice telephony services.
I. MEDIA/BROADCASTING The "Television Without Frontiers '/ Directive was an important step in developing the EC broadcasting market. The purpose of the Directive is to encourage the production and distribution of television programmes throughout the Member States, not only by the creation of a market sufficiently large to render profitable the required investment, but also through requiring preferential treatment of EC works in the television programming of the various Member States. The Directive aims at the free circulation of television broadcasts within a single broadcasting market, in particular by satellite and cable. The UK is overdue in implementing the Directive on copyright and rights related to copyright applicable to satellite broadcasting. This was combined with the implementing regulations for the Direc-
{199{.~] 12 CLSR
tive on Rental and Lending Rights to become one Statutory Instrument. It is expected to be put before Parliament for approval sometime in the New Year. In July 1995 the Commission published a consultation paper aimed at seeking comments on the impact of new technology on the law of copyright. The Green Paper addresses the fundamental question of whether further harmonization of IPR law is required and if so in what manner. The Green Paper deals with nine areas of copyright law, including reproduction rights and digital dissemination or transmission rights.
EC CASE LAW In subsequent issues of the journal we shall be keeping readers aware of significant developments in the case law of the European Courts of Justice and of First Instance which might have a bearing on the IT industry
BOOK REVIEW INTERNET L A W Law on the Electronic Frontier, by lan Lloyd and Moira Simpson, 1995, soft-cover, Edinburgh University Press, £9.95, ISBN 0748605940. This text is published by Edinburgh University Press within the Hume Papers on Public Policy series. The David Hume Institute is a non-political organization aiming to promote discourse and research on economic and legal aspects of public policy questions. This contribution delves into the law governing the emerging information superhighway personified by the Internet. The approach taken by the authors is to compare the traditional Wild West cowboy movie with the concept of a digital frontier in cyberspace. The theme of the work is the difficulty of applying existing legal concepts to revolutionary change in communication. The work is
divided into five main sections, with a conclusion. These cover crime and the computer; the individual in the computer society; elements of data protection; intellectual property and the computer; and liability issues. Throughout the text, the authors successfully relate recent IT developments to the legal issues, identifying the concerns that future law makers will have to address in facing the challenge of the information superhighway. Available from Edinburgh University Press, 22 George Square, Edinburgh, EH8 9LF, UK, tel: +44 (0)131 650 4218 or fax: +44 (0)131 662 0053; or Marston Book Services Ltd, PO Box 87, Oxford, O X 2 0 D I : , UK tel: + 4 4 (0)1865 791155 or fax: + 4 4 (0)1865 791927.
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