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(2004/C 70 E/003)

WRITTEN QUESTION E-2606/02

by Michl Ebner (PPE-DE) to the Commission

(18 September 2002)

Subject:   Charges that distort competition in trade between countries

Charges in respect of copyright are required to be paid in Germany, Austria and Italy, Member States of the EU, with a view to protecting the intellectual property of authors, composers and music publishers.

Is it in accordance with the principles of the free market and in the interests of the EU that charges in respect of copyright are payable in Germany and Austria on the works of authors, music publishers and composers and that, following export, the charges are again required to be paid in Italy prior to resale?

Does such a practice not constitute distortion of competition?

Answer given by Mr Bolkestein on behalf of the Commission

(22 October 2002)

In line with international obligations and the Union legislation on copyright and related rights, the national copyright laws of the Member States provide authors with a number of exclusive rights. The distribution right provides authors with the right to control the sale or other transfer of ownership of physical copies of their literary, musical, audio-visual or other types of works and to receive royalties for their distribution such as through books, videos or CDs.

According to the established jurisprudence of the European Court of Justice, the distribution right, however, exhausts upon the first sale of the copy of a work in the Union or the European Economic Area (EEA), provided that such sale is made by the rightholder or with his consent. This means that, for example, once an author or a book publisher on his behalf has marketed books protected by copyright in one of the Member States, these books may circulate freely in the whole of the Union and may be resold without further authorisation by the author (or the book publisher as his licensee) and without the further payment of royalties.

This jurisprudence, which reconciles the principle of free movement of goods throughout the Union or EEA with the protection of the specific subject matter of intellectual property rights, has been confirmed by several Directives on copyright and related rights, first with respect to specific categories of works, i.e. computer programs (1) and databases (2), and in 2001 for all other categories of works (3), such as literary works incorporated in books or musical works incorporated in CDs. Thus, the author's consent must be sought and a royalty has to be paid for the first distribution of a copyright protected good. In case of further sales or other transfers of ownership within the Union or EEA no further consent or royalties are due. The Commission is not aware of any double payment occurring in a situation of further distribution.

Royalties may also be due for other uses of a copyright protected good, such as for copying of a work, and the payments in question may be raised on the marketing of certain products. These payments would, however, not be a ‘double payment’ for further distribution as they would not be linked to the act of distribution of a copyright protected good. For instance, in most Union Member States, authors enjoy a right of remuneration for the copying of their works for private use. This remuneration is in general raised on blank carriers of audio or audio-visual material and/or on recording equipment and has normally to be paid by the manufacturer or the importer of such products. The remuneration schemes have to be in line with the general principles set out in Article 5(2)(b) of Directive 2001/29/EC on copyright in the information society, which Member States have to implement by December 2002. This Directive allows Member States to provide for exceptions to the rights regarding private copying, including remuneration schemes. However, as these schemes have not been harmonised at Union level, the exact conditions of such schemes may differ from one Member State to another. The remuneration is in general only due if the sale of the products in question will take place in the territory of the Member State but not if it is destined for export.

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(1)  Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, OJ L 122, 17.5.1991.

(2)  Directive 96/9/EC of the Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ L 77, 27.3.1996.

(3)  Directive 2001/29/EC of the Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167, 22.6.2001.

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