Opinion of the Advocate General — ECLI:EU:C:1998:254
Date: 1998-05-26
Language of the case: Danish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Free movement of goods;Measures having equivalent effect;Intellectual, industrial and commercial property;Approximation of laws;Quantitative restrictions;Freedom to provide services;Copyright and related rights
Procedure: Reference for a preliminary ruling
Origin: Denmark

summary of Laserdisken's observations (see point 6 below) 
— the arguments concerning the requested interpretation of 
Articles 85 and 86 of the Treaty. I consider, in fact, that the 
Court is not in a position to give a useful answer to this part 
of the question referred by the national court, since it has 
not explained, either briefly or by reference, the exact rea­
sons that led it to ask for an interpretation of the said provi­
sions in connection with the circumstances of the dispute 
and the national legislation (see point 17 below). It is no 
accident that the reference to the rules on competition in the 
order for reference was understood differently by the par­
ties in the main proceedings, the national governments and 
the Commission — this is clear from the observations they 
submitted to the Court, which examined now one, now 
another of the agreements and practices that might in theory 
be relevant (while the French Government, for its part, raised 
the separate issue of the compatibility of the Danish legisla­
tion with the rules on competition in conjunction with 
Article 5 of the Treaty). 
11 — Namely, the Sammenslutningen af Danske Filminstruktører 
(Union of Danish Film Directors), Mr Michael Viuf Chris­
tiansen (representing the estate of his father, Erik Viuf 
Christiansen, defendant in the main proceedings in Warner 
Brothers), Mr Jensen, a videogram dealer who was declared 
bankrupt following FDV's termination in 1991 of a previous 
product rental licence agreement, and Pioneer Electronics 
Denmark, a company with interests in the distribution of 
videodisc players. 
12 — In particular, Dansk Supermarked v ¡merco, cited in note 8 
above. 
I -5177 
OPINION OF MR LA PERGOLA — CASE C-61/97 
State and not for all the others (just as, within 
a Member State, consent could not be limited 
to part of its territory). 
III — The answer to the question 
Examination with reference to Articles 30 and 
36 of the Treaty 
7. In the observations they have submitted to 
the Court, the parties, the Commission and 
the intervening national governments have all 
referred in one way or another to the prin­
ciples established by the Court in Warner 
Brothers. 13 As in the main proceedings in the 
present case, so too in Warner Brothers, the 
question was raised of compatibility between 
the exclusive rental right granted under Danish 
copyright legislation (see point 3 above) and 
the Treaty provisions on free movement of 
goods, with reference to a case in which 
videograms lawfully purchased in the United 
Kingdom were hired out in Denmark without 
authorisation. The Court held, first of all, that 
the law in question, which enables the author 
or producer of a cinematographic work repro­
duced on video-cassette to prohibit the 
hiring-out of videograms of that work in 
national territory, was 'liable to influence trade 
in video-cassettes [in the Member State in 
question] and hence, indirectly, to affect intra-
Community trade in those products'. The 
Court therefore took the view that it was a 
measure having an effect equivalent to a quan­
titative restriction, which is prohibited by 
Article 30 of the Treaty (paragraph 10). The 
Court then proceeded to examine whether 
such a restriction might be considered justi­
fied in that particular case on grounds of the 
protection of industrial and commercial prop­
erty within the meaning of Article 36, noting 
in this connection that the Danish legislation 
applied without distinction to video-cassettes 
produced in situ and video-cassettes imported 
from another Member State and that it did 
not therefore operate any arbitrary discrimi­
nation in trade between Member States (para­
graphs 11 and 12). I consider that these prin­
ciples are clearly applicable to the present case 
also. 
8. In its judgment in Warner Brothers, the 
Court mentioned other factors determining a 
specific rental right, which is an inherent part 
of the specific subject-matter of copyright, 
and its implications for the free movement of 
goods and I propose to offer some further 
considerations on that subject. However, 
before proceeding with my examination of 
those factors (see point 12 below), I feel a few 
brief remarks are called for, to place that 
judgment in the wider context of the justifi­
cation for the principle of exhaustion of copy­
right and the scope of that principle. 
9. As with trade-mark or patent law, the rule 
of (national) exhaustion of copyright — or, to 13 — Cited in note 3 above. 
I -5178 
FDV v LASERDISKEN 
be more precise, the exclusive right of distri­
bution (or putting into circulation) — pro­
vided for in the legal systems of many Member 
States is justified on the principle that when 
the rightholder (or others with his consent) 
places the product on which the copyright 
work is reproduced on the market, by sale, he 
receives once and for all the consideration 
due to him in return for that reproduction. In 
the context of the single market, the Com­
munity case-law on the application of Article 
36 of the Treaty has been concerned, in order 
to stimulate invention and creative activity 
and encourage the opening up of new mar­
kets, to reconcile the exclusive rightholder's 
needs with the general interest in the free 
movement of the products in question. 14 The 
Court has consequently accepted the prin­
ciple of the automatic exhaustion of the right 
in question throughout Community territory, 
so as to avoid the situation where — because 
of the territorial nature of national legislation 
on industrial, commercial and intellectual 
property — the remuneration payable to the 
exclusive rightholder when the product is first 
put into circulation has to be paid again 
simply because the product embodying his 
inventive or creative powers is resold in a 
Member State other than the Member State in 
which it was first sold. 15 Moreover, the oppo­
site principle, which would legitimise the iso­
lation of national markets, would be repug­
nant to the essential purpose of the Treaty, 
which is to unite national markets into a single 
market. 16 
10. The principle of exhaustion cannot how­
ever be applied to exclusive performing rights 
— that is, to the right to communicate the 
protected work to the public, either directly 
through live performers (as in the case of a 
theatrical performance) or through material 
forms of the 'work (for example, by broad­
casting a record on radio or showing a film 
on television or in the cinema) — or gener­
ally to copyright in work for which com­
munication to the public does not require cir­
culation in material form. In this case, the 
exploitation of the work does not conflict 
with the free movement of goods and placing 
the work on the market cannot therefore serve 
as a criterion for determining the scope of the 
exclusive right. 17 As successive performances 
of the work are independent of one another, 
the right cannot be regarded as exhausted after 
the first performance. Each performance, 
embodying afresh the 'commercial essence' of 
the work, 18 is a separate act of exploitation 
generating a right to remuneration. The law 
protects that right, which 'is part of the essen­
tial function of copyright in this type of lit­
erary and artistic work', by making the exer­
cise of the right conditional upon the holder's 
consent. 19 
With specific regard to the rights of the holder 
of the performing right in a cinematographic 
film, the Court also had occasion to rule that 
14 — See B. Castell, L'épuisement' du droit intellectuel en droits 
allemand, français et communautaire, Paris, 1989, in par­
ticular p. 131. 
15 — See C. Dautrelepont, Les arrêts Coditei face au droit interne 
et au droit européen, in Journal des Tribunaux, 1984, p. 397, 
in particular p. 407. 
16 — Sec ex mulas. Case 78/70 Deutsche Grammophon v Metro 
[1971] ECR 487 and Dansk Supermarked v Imerco, cited in 
note 8 above. 
17 — See V.-L. Benabou, Droits d'auteur, droits voisins et droit 
communautaire, Brussels, 1997, in particular p. 100. 
18 — See B. Edelman, commentary on the judgment in Warner 
Brothers, in J. C. P., Éd. gén., 1989, II, p. 21173. 
19 — See Case 62/79 Coditel and Others v Ciné-Vog Films and 
Others [1980] ECR 881, paragraphs 12-14, and Case 395/87 
Ministere public v Tournier [1989] ECR 2521, paragraph 12. 
I - 5 1 7 9 
O P I N I O N O F MR LA PERGOLA — CASE C-61/97 
the exploitation of copyright in films and the 
fees attaching thereto 'cannot be regulated 
without regard being had to the possibility of 
television broadcasts' of those films. Such 
broadcasts may therefore lawfully be prohib­
ited for a certain period of time, during which 
the film may be shown only in cinemas. 20 In 
view of the 'imperative need' to encourage 
the creation of cinematographic works, the 
national systems of the Member States may 
therefore — without infringing the Commu­
nity rules on free movement of goods — give 
priority for a limited initial period to the dis­
tribution of such works through the cinema, 
such protection being considered necessary in 
the interests of the profitability of cinemato­
graphic production, as against distribution of 
the works in question by other means, in par­
ticular through video-cassettes. 21 
11. Where the public performance of a work 
requires the use of a material form of that 
work (for example, a recording of a musical 
work played in a discotheque), 'the require­
ments relating to the free movement of goods 
and the freedom to provide services and those 
deriving from the observance of copyright 
must be reconciled in such a way that the 
copyright owners ... may invoke their exclu­
sive rights in order to require the payment of 
royalties', even though the marketing of that 
recording cannot give rise to the charging of 
any royalty in the country where the music 
is played in public, as royalties have already 
been paid to the author in another Member 
State. 22 The Court therefore recognised that 
an author's right to control the public perfor­
mance of a recorded work reserved for pri­
vate use, in order to charge a supplementary 
reproduction fee, does not conflict with the 
free movement of goods, except in so far as 
the right is invoked in order to impose on the 
purchaser of copies of the work restrictions 
as to their use that may restrict their circula­
tion. 23 
12. A similar distinction may be drawn 
between the right to put recordings of a cin­
ematograph work (videograms) into circula­
tion and the right to hire out the works 
recorded on them, as the Court had occasion 
to observe in Warner Brothers. The Court 
went into some detail on the gradual but 
complete 'emergence' of a specific market for 
20 — Case 62/79, cited in note 19 above, paragraphs 13 and 14. 
The Court added that assignment of the right to perform the 
work by showing it on television may be limited by agree­
ment to the territory of one Member State without breaching 
the Treaty provisions on freedom to provide services. The 
judgment in question also stated quite clearly that the Court's 
decision related to a situation — which existed at that time 
in the Member States — 'where television is organised ... 
largely on the basis of legal broadcasting monopolies, which 
indicates that a limitation other than the geographical field 
of application of an assignment is often impracticable'. 
21 — O n two conditions, first, that the prohibition on the exploi­
tation of video-cassettes during the initial period reserved 
for showing in cinemas applies to domestically produced 
and imported cassettes alike and, second, that any barriers 
to intra-Community trade to which its implementation may 
give rise do not exceed what is necessary to achieve the end 
in view (see judgment in Cinéthèque and Others v Federa­
tion nationale des cinémas français, cited in note 9 above). 
22 — Ministère public v Tournier cited in note 19 above, paragraph 
13, and Case 402/85 Basset v SACEM [1987] ECR 1747. 
23 — See T. Desurmont, 'Le droit de l'auteur de contrôler la des­
tination des exemplaires sur lesquels son oeuvre se trouve 
reproduite', in Revue internationale du droit d'auteur, 1987, 
p. 3, in particular p. 61. 
I -5180 
FDV v LASERDISKEN 
the hiring-out of video-cassettes, as distinct 
from their sale. It observed that that market 
'reaches a wider public than the market for 
their sale and, at present, offers great poten­
tial as a source of revenue for makers of films' 
(paragraphs 13 and 14). 24 It therefore held 
that specific protection of the right to hire 
out video-cassettes is clearly justified to guar­
antee to makers of films a remuneration which 
reflects the number of occasions on which the 
video-cassettes are actually hired out and 
which secures for them a satisfactory share of 
the rental market. However, it considered that 
that could not be guaranteed by 'authorising 
the collection of royalties only on sales to 
private individuals and to persons hiring out 
video-cassettes' (paragraph 15). That would 
penalise the author unduly by requiring him 
to specify, when his work is placed on the 
market for the first time, all the uses to which 
it might subsequently be put. 25 It follows 
that — without prejudice to the right to 
remuneration when the material form of the 
work is first put into circulation — the right 
to receive a royalty each time the work is 
hired out is part of the specific subject-matter 
of the author's copyright in a film recorded 
on videogram (on a par with his right to 
receive a royalty for each public performance 
of the work). 26 Thus the Court held, in that 
judgment, that the exclusive rental right pro­
vided under the legislation of one Member 
State (in that case, Denmark) is not exhausted 
when the owner of the copyright chooses to 
offer the video-cassette of his work for sale 
for the first time in another Member State (in 
that case, the United Kingdom), whose legis­
lation — as in the case at issue on that occa­
sion — confers no such right on the copy­
right holder. Unlike Advocate General 
Mancini, 27 the Court took the view that the 
acquisition by a third party of rights in the 
product in which the work is incorporated (i. 
e. the corpus mechanicum) does not mean that 
the intellectual property rightholder loses all 
his rights, concluding that 'where national 
legislation confers on authors a specific right 
to hire out video-cassettes, that right would 
be rendered worthless if its owner were not 
in a position to authorise the operations for 
24 — The Court held that the existence of that market was made 
possible by various factors such as 'the improvement of 
manufacturing methods for video-cassettes which increased 
their strength and life in use, the growing awareness amongst 
viewers that they watch only occasionally the video-cassettes 
which they have bought and, lastly, their relatively high pur­
chase price' {Warner Brothers, cited in note 3 above, para­
graph 14). 
25 — See Benabou (op. cit. in note 17 above, p. 131), who argues 
that the difficulty of making such provision is all the greater 
because of the very rapia increase in diffusion options 
resulting from technological advances. 
26 — Sec G. Bonet, commentary on the judgment in Warner 
Brothers, in Revue trimestrielle de droit européen-, 1988, p. 
647, in particular p. 652. 
27 — According to the Advocate General, the assimilation of the 
hiring-out of a film —as an essentially repetitive form of 
commercial exploitation — to its public performance is 
unfounded. He observed, however, that they none the less 
have the common characteristic that they 'necessarily involve 
making the product commercially available to the consumer'. 
'Once the maker of a film has sold the cassette to a third 
party, thereby transferring permanently his proprietary right 
over the recording and permitting it to circulate freely, he 
may not thereafter avail himself of the provisions of another 
State so as to assert his exclusive right over the work recorded 
on the cassette and thereby in pracúce prevent it from 
entering that State. Such a claim is motivated by the same 
economic interests which underlay the original disposal of 
the work; and, if that is so, the claim must yield to the rule 
under Article 30. ... To argue to the contrary would imply 
taking away from consumers, in this case from Danish citi­
zens, what they may obtain as of right under the Treaty' 
(original italics). He suggested that the exhaustion of the 
film maker's right to restrain the hiring-out of video-
cassettes he has put into circulation in Community territory 
was tempered by recognition of the right to fair compensa­
tion or some other form of protection and the possibility for 
the author to safeguard his position 'by inserting appropriate 
clauses into the contract of sale' (Advocate General's Opinion 
delivered on 26 January 1988 in Warner Brothers, cited in 
note 3 above, in particular pp. 2622-2624). 
I -5181 
O P I N I O N O F MR LA PERGOLA — CASE C-61/97 
doing so' or to restrain them (paragraphs 17 
and 18). 2 8 
13. In my view, it should now be considered 
whether those principles are transposable in 
toto to the dispute pending before Retten i 
Aalborg or whether, on the contrary, a dif­
ferent conclusion must be reached in the light 
of two factors mentioned by Laserdisken. In 
the present case, the holders of the copyright 
for the United Kingdom in the works repro­
duced on the videodiscs did not exercise their 
own rental right, which had been introduced 
into the United Kingdom legislation in the 
meantime, to restrain the unauthorised opera­
tions of the United Kingdom dealers. Conse­
quently, — according to the defendants — 
the tacit consent to the rental of the video­
discs in United Kingdom territory, together 
with their initial sale, exhausted the rental 
right in the other Member States also. 
14. In my opinion, these two respects in 
which the factual and legislative context in 
the present case differs from that in Warner 
Brothers, although undoubtedly relevant, 
ought not to lead the Court to accept the 
arguments advanced by Laserdisken. The 
starting-point for the answer to the question 
referred by the national court must be the 
principle established by the Court 10 years 
ago, namely that rental right, although poten­
tially constituting a barrier to the circulation 
of videograms between the Member States, is 
not exhausted when such products are put 
into circulation in Community territory. I 
have already examined the reasons for that 
rule. The author's right to control the exploi­
tation of the work in the secondary market 
does not authorise him to erect barriers to the 
importing or resale of the goods in question. 
That is why, in striking a balance between the 
two competing interests, his interest in 
receiving an appropriate return as a basis for 
his future creative and artistic activities takes 
precedence over the general interest in the 
free movement of videograms between the 
Member States, including their availability for 
rental at a price substantially lower than the 
sale price. 
15. That being said, it should be noted that 
the exclusive right to make individual copies 
of the work reproduced on videogram avail­
able for use for a limited period of time is 
inherently open to exploitation through 
repeated and potentially unlimited opera­
tions, each of which gives rise to a right to 
royalties. Consequently, when the author 
decides to assign the rental right, by means of 
a contractual licence, he may legitimately limit 
28 — The Court consequently ruled that 'Articles 30 and 36 of the 
EEC Treaty do not prohibit the application of national leg­
islation which gives an author the right to make the hiring-out 
of video-cassettes subject to his permission, when the video-
cassettes in question have already been put into circulation 
with his consent in another Member State whose legislation 
enables the author to control the initial sale, without giving 
him the right to prohibit hiring-ouť. 
I - 5182 
FDV y LASERDISKEN 
that licence to a specific material form, a cer­
tain period of time or a particular geographical 
area, so as to maximise the profits on the 
commercial exploitation of the work through 
rental. Now, it is impossible to see how 
authors and producers could receive reason­
able remuneration for their intellectual work 
or a fair return on their investment if third-
party traders (such as Laserdisken in the 
present case) were to be able, simply by 
invoking the exhaustion of the copyright hold­
er's rental right in the absence of a licence 
agreement, to authorise the use of the video-
grams, for consideration, by the public and in 
particular by consumers in a Member State 
other than the Member State in which they 
were first rented out. The result would be to 
deprive the lawful proprietors irremediably 
of a profit on their intellectual work to which 
they are entitled. It cannot therefore be 
accepted that rental right must be exhausted 
after it is exercised for the first time, with the 
result that the rightholder would have no 
control over any subsequent rental of the 
product even in Member States in which the 
right to make it available for use had not been 
assigned by means of licence agreements. I 
need hardly add that automatic exhaustion of 
rental right following the first rental of the 
product is not the rule at Community level, 
primarily because — save as otherwise pro­
vided by law — there is no such provision in 
the national legislation of the State in which 
the product is first rented out. 29 The copy­
right holder may therefore restrain unautho­
rised rental of his work even if he has himself 
rented it out for the first time in his own 
country. Lastly, if Laserdisken's arguments 
were to be accepted, it would have the effect 
of depriving the author of the right — which 
follows from the Court's judgments in Coditei 
and Cinéthèque 30 — to control the sequence 
in time of the various forms of distribution of 
a cinematographic work, which is a corollary 
of the right to prohibit, during the period of 
grace reserved for distribution in cinemas, the 
marketing through rental of video-cassettes 
of the same film imported from other Member 
States in which the period of grace has already 
come to an end. 
Examination with reference to the Directive 
16. As the plaintiffs, the 'intervening' national 
governments and the Commission have all 
29 — Sec G. Marcnco-K. Banks, 'Intellectual Property and the 
Community Rules on Free Movement Discrimination 
unearthed', in Eur. L· Rev., 1990, p. 224, in particular pp. 
248 and 249. The authors are in fact discussing the non-
exhaustion of exclusive rental right following initiai distribu­
tion of the product by sale, but similar considerations apply 
in the present case. 
30 — See notes 20 and 21 above. See F. Pollaud-Dulian, Le droit 
de destination: le sort des exemplaires en droit d'auteur, 
Paris, 1989, p. 464, and Benabou, op. cit. in note 17 above, 
p. 117, or, for references to the judgment of the Tribunal de 
Charleroi (Charleroi Court) delivered on 27 March 1986 in 
joined cases 48.587 and 51.363, GPFI and others v DGD 
and VRP (Revue internationale du droit d'auteur, 1986, IV, 
p. 128), according to which 'if it is admitted that a film may 
be the subject of an exclusive territorial licence for distribu­
tion in cinemas but that that Učence cannot be relied upon 
in proceedings against third parties in connection with video­
cassettes, the exclusive licence for exploitation in cinemas 
would clearly be rendered worthless because, in that event, 
the national market would be flooded with video-cassettes 
which would threaten the exploitation of the film in cin­
emas, the very thing the exclusive licence was designed to 
protect'. 
I-5183 
O P I N I O N O F MR LA P E R G O L A — CASE C-61/97 
observed, the solution I propose is corrobo­
rated rather than contradicted by the relevant 
provisions of the Directive (see below), which 
in fact harmonised the Member States' national 
legislation on rental right (as well as lending 
right) on the lines suggested by the Danish 
legislation. In mentioning this, I must how­
ever point out that the solution proposed by 
the Community legislature is in my opinion, 
technically at least, irrelevant for the purposes 
of the present case in that, pursuant to Article 
13, the provisions of the Directive became 
applicable on 1 July 1994, that is to say after 
the Danish courts issued the injunction against 
Laserdisken. As we know, the Directive draws 
a distinction between the effects of the rental 
right per se (see Article 1(4)) and those of the 
distribution right (that is to say, the 'exclusive 
right to make available these objects [fixa­
tions], including copies thereof, to the public 
by sale or otherwise'), which is regulated in 
Article 9(2) and (3). 31 Only the distribution 
right is exhausted with the first sale in the 
Community of one of the objects in question 
by the rightholder or 'with his consent. The 
rental right, on the other hand, is not exhausted 
by any sale or other act of distribution of 
those objects. It is precisely because the pur­
pose and scope of the two rights are different 
that the Court held — in its recent judgment 
in Metronome — that the introduction by the 
Directive of an exclusive rental right cannot 
constitute any breach of the principle of 
exhaustion of the distribution right. 32 
Examination with reference to Articles 85 and 
86 of the Treaty 
17. To complete the legal examination 
required to answer the question referred by 
the national court, it now remains to be seen 
whether there may have been a breach of 
Articles 85 and 86 of the Treaty in this case. 
However, this appears to me to be an impos­
sible task, since the statement of reasons con­
tained in the order for reference does not give 
even a brief account of the plaintiffs' conduct, 
which the national court asks the Court to 
assess in respect of its effect on competition. 
The order for reference does not identify any 
31 — Article 1 of the Directive, entitled 'Object of harmonisation' 
reads as follows: 
' 1 . In accordance with the provisions of this Chapter, Member 
States shall provide ... a right to authorise or prohibit the 
rental and lending of originals and copies of copyright works, 
and other subject matter [i. e. fixations of the artistic work 
of a performer or phonogram producer and the first fixa­
tion of a film] as set out i n Article 2(1). 
2. For the purposes of this Directive "rental" means making 
available for use, for a limited period of time and for direct 
or indirect economic or commercial advantage. 
4. The rights referred to in paragraph 1 shall not be exhausted 
by any sale or other act of distribution of originals and 
copies of copyright works and other subject matter as set 
out in Article 2(1).' 
Article 2 ('Rightholders and subject matter of rental and 
lending right'), paragraph 4 provides that: T h e rights referred 
to in paragraph 1 may be transferred, assigned or subject to 
the granting of contractual licences.' 
Lastly, Article 9 ('Distribution right') in Chapter II of the 
Directive, which is concerned with rights related to copy­
right, provides that: 
2. The distribution right shall not be exhausted within the 
Community ... except where the first sale in the Community 
of that object is made by the rightholder or with his consent. 
3. The distribution right shall be without prejudice to the 
specific provisions of Chapter I, in particular Article 1(4).' 
32 — Case C-200/96 Metronome Musik v Music Point Hokamp 
[1998] ECR I-1953, paragraphs 13-20, and Opinion in that 
case, delivered by Advocate General Tesauro on 22 January 
1998, points 13, 14, 25 and 26. 
I -5184 
FDV y LASERDISKEN 
of the allegedly anti-competitive agreements 
or concerted practices (could these be the 
licence agreements between the plaintiffs and 
the producers? or possible horizontal agree­
ments between the plaintiffs belonging to the 
FDV?) or any conduct constituting abuse by 
the plaintiffs of the dominant position they 
are supposed, collectively, to hold (could this 
simply be their refusal to allow Laserdisken 
to rent out the imported videodiscs? or their 
alleged refusal even to assign it the right to 
make video-cassettes produced by the plain­
tiffs available for use?). In the question referred 
by the Danish court, any such agreements 
and/or conduct are, in fact, mentioned only 
in very general terms. They apparently con­
sist of giving consent to the rental of his own 
products (video-cassettes), while at the same 
time preventing the rental of imported prod­
ucts (videodiscs) which have been offered for 
rental in another Member State by a third 
party (not the importer) with the tacit con­
sent of the holder of the exclusive manufac­
turing and distribution rights. But this — at 
least in the absence of further details — is 
precisely what, in law, the exclusive rights 
conferred on the author and his assigns allow 
them to do in the circumstances as described 
(acquisition of an exclusive rental right by 
means of a licence agreement). I should explain, 
that in making this comment, I have no wish 
to deny the relevance of the competition rules 
for the purpose of the task, incumbent on the 
national court, of determining whether the 
factual and legislative context of the present 
case is compatible with Community law. It 
seems to me to be patently clear, for example, 
as Laserdisken has stated in the course of the 
procedure, that if the plaintiffs were to exer­
cise their exclusive rental rights in a negative 
manner, solely in order to prevent the deve­
lopment of a videodisc rental market in Den­
mark — with the result that the Danish con­
sumers concerned would be obliged to 
purchase, at a high price, products that they 
would prefer to rent —, then that conduct 
would be liable to distort competition on the 
market. 33 I therefore consider that, in the 
present case, Retten i Aalborg has not fully 
defined the factual and legislative context of 
this limb of its question and the Court is con-
sequendy not in a position to provide it with 
a useful interpretation of Articles 85 and 86. 34 
That conclusion does not affect the right of 
the national court to seek the Court's inter­
pretative assistance again, should it feel the 
need to do so, by referring further questions 
for preliminary ruling in the context of the 
same case. 
33 — See, ex multis , Case 262/81, cited in note 9 above, paragraphs 
17 to 20, in which the Court held that, although copyright 
in a film and the right deriving from it, namely that of 
exhibiting the film, are not as such subject to the prohibi­
tions contained in Article 85, 'the exercise of those rights 
may, none the less, come within the said prohibitions where 
there are economic or legal circumstances the effect of which 
is to restrict film distribution to an appreciable degree or to 
distort competition on the cinematographic market, regard 
being had to the specific characteristics of that market'. It is 
therefore — in the Court's view — for the national court to 
make such inquiries as may be necessary 'and in particular 
to establish whether or not the exercise of the exclusive right 
to exhibit a cinematographic film creates barriers which are 
artificial and unjustifiable in terms of the needs of the cin­
ematographic industry, or the possibility of charging fees 
which exceed a fair return on investment, of an exclusivity 
the duration of which is disproportionate to those require­
ments, and whether or not, from a general point of view, 
such exercise within a given geographic area is such as to 
prevent, restrict or distort competition within the common 
market'. More recently, Advocate General Tesauro observed 
that, in the light of recent decisions of the Court, there was 
some doubt as to whether 'the grounds of general interest 
on which the right [i. e. exclusive rental right] was granted 
were such as to justify an exercise of that right that was 
clearly contrary to the provisions of Article 86 of the Treaty' 
(Opinion in Metronome Musik v Music Point Hokamp, cited 
in note 32 above, point 33). 
34 — The Court has held that those requirements are of particular 
importance in the field of competition, which is character­
ised by complex factual and legal situations (see, ex multist 
Joined Cases C-320V90, C-321/90 and C-322/90 Tetemarsi-
ashruzzo and Others v Circostel and Others [1993] ECR 
I-393, paragraphs 6 and 7, and Case C-387/93 Bandiera 
[1995] ECR I-4663, paragraphs 18-21). 
I -5185 
OPINION OF MR LA PERGOLA — CASE C-61/97 
IV — Conclusion 
In the light of the foregoing considerations, I propose that the Court give the fol­
lowing answer to the question referred by Retten i Aalborg: 
Copyright legislation of a Member State, which allows the holder of the produc­
tion and distribution rights in a film, or the person to whom he has granted an 
exclusive licence in that Member State, to prevent videograms imported from 
another Member State from being rented out by a third party without authorisa­
tion, even if the copyright holder has put them into circulation by sale in the 
exporting State and has tacitly agreed that copies sold may be rented out in that 
State, is compatible with Articles 30 and 36 of the Treaty and remains so even after 
1 July 1994, when 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 came into effect. 
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