# CE2004084EN.01093201.xml

| 3.4.2004 | EN | Official Journal of the European Union | CE 84/932 |
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3.4.2004

EN

Official Journal of the European Union

CE 84/932

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(2004/C 84 E/1030)

WRITTEN QUESTION E-1033/04

by Ilda Figueiredo (GUE/NGL) to the Commission

(5 April 2004)

Subject:   Safeguarding the public lending right in Portuguese libraries

Subject:

A petition on the Internet reveals that on 16 January 2004 the Commission decided to formally request information from Portugal, Spain, France, Italy, Ireland and Luxembourg regarding their national implementation of the public lending right, the commercial rental right and certain rights related to copyright in the sphere of intellectual property.

This means that there may be a charge for borrowing books and other documents in Portuguese libraries — whether public, school, university or other libraries.

In a country such as Portugal, in which economic problems and the fact that reading is not yet a well-established habit make access to knowledge and culture difficult for broad sections of the population, a measure of this kind would be disastrous, jeopardising the current campaign to promote reading, and would be a retrograde step as regards making the Portuguese better qualified to tackle successfully the challenge of the ‘knowledge society’.

The Commission:

| 1. | Can it confirm this information? If so, what steps will it take to guarantee European citizens free and unrestricted access to knowledge, the expression of ideas, culture and information? |
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1.

Can it confirm this information? If so, what steps will it take to guarantee European citizens free and unrestricted access to knowledge, the expression of ideas, culture and information?

| 2. | What measures does it envisage to ensure that the current arrangements for the benefit of libraries, archives, museums and similar entities, which are at present exempt under the law on intellectual property, are maintained on exactly the same terms in Portuguese legislation, in accordance with the legal framework created by Directive 92/100/EEC (1) on rental right and lending right and on certain rights related to copyright in the field of intellectual property? |
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2.

What measures does it envisage to ensure that the current arrangements for the benefit of libraries, archives, museums and similar entities, which are at present exempt under the law on intellectual property, are maintained on exactly the same terms in Portuguese legislation, in accordance with the legal framework created by Directive 92/100/EEC (1) on rental right and lending right and on certain rights related to copyright in the field of intellectual property?

1

Answer given by Mr Bolkestein on behalf of the Commission

(30 April 2004)

(30 April 2004)

The public lending right was harmonised in 1992 by Articles 1 and 5 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. The Member States voted unanimously in favour of this Council Directive.

The aims of the concept of the public lending right given in the directive (2) are to help create a genuine single market in goods and services protected by intellectual property and to take account of the different traditions of the Member States in the field of public lending. To this end, Article 5 of the directive lays down that Member States may derogate from the exclusive right in respect of public lending, provided that at least authors obtain a remuneration for such lending. In addition, Member States may also exempt certain categories of lending establishments from all lending rights.

2

It is therefore possible to strike a balance between the fair and necessary remuneration of those who create products and the widest possible access to culture and knowledge via public lending. This point was reiterated by the Internal Market Commissioner on 16 September 2002 (3) when the report on the application of the public lending right in the Member States was published. (4):

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| | The challenge is to ... maintain good public access to cultural products while making sure that those who create them get equitable remuneration which allows them to keep on working and giving us pleasure. |
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The challenge is to ... maintain good public access to cultural products while making sure that those who create them get equitable remuneration which allows them to keep on working and giving us pleasure.

In order to attain this balance and ensure that the directive is properly applied, the Commission has indeed instituted infringement proceedings under Article 226 of the EC Treaty against Member States which have not — or have incorrectly — transposed Articles 1 and 5 of Directive 92/100/EEC (and which have, for example, exempted all categories of public lending establishments from the lending right (5)), as this is clearly damaging to the smooth operation of the single market and to its rightholders. It is the responsibility of the Commission, as guardian of the Treaties, to ensure that primary and secondary Community legislation is applied fully and correctly in all Member States.

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In addition, the Commission would like to point out that it is not responsible for laying down or deciding upon the system set up at national level to ensure that the aforementioned directive is transposed. This responsibility lies with the Member States, which do, moreover, have a wide margin of flexibility in implementing the public lending right (6).

6

The Commission is, however, required to ensure that the public lending right, as harmonised by Community legislation, is applied effectively in all Member States.

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(1)  OJ L 346, 27.11.1992, p. 61.

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(2)  See point No 3.3 of the Commission Communication on the public lending right in the European Union, COM(2002) 502 final.

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(3)  See press release IP/02/1303.

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(4)  Above-mentioned Communication, see footnote No 1.

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(5)  See press release IP/04/60 of 16.1.2004.

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(6)  See Article 5 of Directive 92/100/EEC and points 3.3 and 3.4 of the Communication COM(2002) 502 final.

6

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