Opinion of the Advocate General — ECLI:EU:C:2006:437
Date: 2006-06-29
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services;Copyright and related rights
Procedure: Action for failure to fulfil obligations - successful
Origin: Spain

Summary of the Judgment Approximation of laws – Copyright and related rights – Rental and lending right in respect of protected works – Directive 92/100 (Council Directive 92/100, Arts 1 and 5) A Member State which exempts almost all, if not all, categories of establishments undertaking the public lending of works protected by copyright from the obligation to pay remuneration to authors for the lending carried out fails to fulfil its obligations under Articles 1 and 5 of Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of intellectual property. The objective of the Directive is to guarantee that authors and performers receive appropriate income and recoup the especially high and risky investments required particularly for the production of phonograms and films. Concerning in that respect the scope of Article 5(3) of the directive, according to which Member States may exempt ‘certain categories of establishments’ from payment of the remuneration to authors in respect of public lending provided for in Article 5(1), exempting almost all, if not all, categories of establishments which engage in such lending from the obligation laid down in Article 5(1) would deprive authors of remuneration allowing them to recoup their investments, with inevitable repercussions for the creation of new works. Moreover, the expression ‘certain categories of establishments’ in Article 5(3) is to be understood as meaning that it refers to a concept which is quantitative in nature. Thus, only a limited number of categories of establishments potentially required to pay remuneration pursuant to Article 5(1) are capable of being exempt from that requirement. (see paras 24, 26-27, 32, 43, operative part)