1992L0100 — EN — 24.11.1993 — 001.001 — 1
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►B 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
(OJ L 346, 27.11.1992, p. 61)
Amended by:
Official Journal
No page date
►M1Council Directive 93/98/EEC of 29 October 1993 L290 9 24.11.1993
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▼B
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 COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European EconomicCommunity, and in particular Articles 57 (2), 66 and 100a thereof,
Having regard to the proposal from the Commission(
1),
In cooperation with the European Parliament(2),
HavingregardtotheopinionoftheEconomicandSocialCommittee(3),
Whereas differences exist in the legal protection provided by the laws
and practices of the Member States for copyright works and subjectmatterofrelatedrightsprotectionasregardsrentalandlending;whereassuch differences are sources of barriers to trade and distortions ofcompetition which impede the achievement and proper functioning ofthe internal market;
Whereassuchdifferencesinlegalprotectioncouldwellbecomegreater
as Member States adopt new and different legislation or as nationalcase-law interpreting such legislation develops differently;
Whereassuchdifferencesshouldthereforebeeliminatedinaccordance
withtheobjectiveofintroducinganareawithoutinternalfrontiersassetoutinArticle8aoftheTreatysoastoinstitute,pursuanttoArticle3(f)oftheTreaty,asystemensuringthatcompetitioninthecommonmarketis not distorted;
Whereasrentalandlendingofcopyrightworksandthesubjectmatterof
related rights protection is playing an increasingly important role inparticular for authors, performers and producers of phonograms andfilms; whereas piracy is becoming an increasing threat;
Whereastheadequateprotectionofcopyrightworksandsubjectmatter
of related rights protection by rental and lending rights as well as theprotection of the subject matter of related rights protection by thefixation right, reproduction right, distribution right, right to broadcastand communication to the public can accordingly be considered asbeing of fundamental importance for the Community’s economic andcultural development;
Whereas copyright and related rights protection must adapt to new
economic developments such as new forms of exploitation;
Whereasthecreativeandartisticworkofauthorsandperformersneces-
sitates an adequate income as a basis for further creative and artisticwork, and the investments required particularly for the production ofphonogramsandfilmsareespeciallyhighandrisky;whereastheposs-ibilityforsecuringthatincomeandrecoupingthatinvestmentcanonlyeffectivelybeguaranteedthroughadequatelegalprotectionoftheright-holders concerned;
Whereas these creative, artistic and entrepreneurial activities are, to a
largeextent,activitiesofself-employedpersons;whereasthepursuitofsuch activities must be made easier by providing a harmonized legalprotection within the Community;
(1) OJ No C 53, 28. 2. 1991, p. 35 and
OJ No C 128, 20. 5. 1992, p. 8.
(2) OJ No C 67, 16. 3. 1992, p. 92 and Decision of 28 October 1992 (not
yet published in the Official Journal).
(3) OJ No C 269, 14. 10. 1991, p. 54.
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Whereas, to the extent that these activities principally constitute
services,theirprovisionmustequallybefacilitatedbytheestablishmentin the Community of a harmonized legal framework;
Whereas the legislation of the Member States should be approximated
insuchawaysoasnottoconflictwiththeinternationalconventionsonwhich many Member States’ copyright and related rights laws arebased;
Whereas the Community’s legal framework on the rental right and
lendingrightandoncertainrightsrelatedtocopyrightcanbelimitedtoestablishingthatMemberStatesproviderightswithrespecttorentalandlendingforcertaingroupsofrightholdersandfurthertoestablishingtherightsoffixation,reproduction,distribution,broadcastingandcommuni-cation to the public for certain groups of rightholders in the field ofrelated rights protection;
Whereasitisnecessarytodefinetheconceptsofrentalandlendingfor
the purposes of this Directive;
Whereas it is desirable, with a view to clarity, to exclude from rental
and lending within the meaning of this Directive certain forms ofmakingavailable,asforinstancemakingavailablephonogramsorfilms(cinematographic or audiovisual works or moving images, whether ornot accompanied by sound) for the purpose of public performance orbroadcasting,makingavailableforthepurposeofexhibition,ormakingavailable for on-the-spot reference use; whereas lending within themeaning of this Directive does not include making available betweenestablishments which are accessible to the public;
Whereas, where lending by an establishment accessible to the public
givesrisetoapaymenttheamountofwhichdoesnotgobeyondwhatisnecessary to cover the operating costs of the establishment, there is nodirect or indirect economic or commercial advantage within themeaning of this Directive;
Whereas it is necessary to introduce arrangements ensuring that an
unwaivable equitable remuneration is obtained by authors and perfor-merswhomustretainthepossibilitytoentrusttheadministrationofthisright to collecting societies representing them;
Whereastheequitableremunerationmaybepaidonthebasisofoneor
severalpaymentsananytimeonoraftertheconclusionofthecontract;
Whereas the equitable remuneration must take account of the impor-
tanceofthecontributionoftheauthorsandperformersconcernedtothephonogram or film;
Whereas it is also necessary to protect the rights at least of authors as
regardspubliclendingbyprovidingforspecificarrangements;whereas,however, any measures based on Article 5 of this Directive have tocomplywithCommunitylaw,inparticularwithArticle7oftheTreaty;
Whereas the provisions of Chapter II do not prevent Member States
fromextendingthepresumptionsetoutinArticle2(5)totheexclusiverights included in that chapter; whereas furthermore the provisions ofChapter II do not prevent Member States from providing for a rebut-table presumption of the authorization of exploitation in respect of theexclusiverightsofperformersprovidedforinthosearticles,insofarassuch presumption is compatible with the International Convention forthe Protection of Performers, Producers of Phonograms and Broad-castingOrganizations(hereinafterreferredtoastheRomeConvention);
Whereas Member States may provide for more farreaching protection
forownersofrightsrelatedtocopyrightthanthatrequiredbyArticle8of this Directive;
Whereas the harmonized rental and lending rights and the harmonized
protection in the field of rights related to copyright should not beexercised in a way which constitutes a disguised restriction on tradebetween Member States or in a way which is contrary to the rule of
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media exploitation chronology, as recognized in the Judgment handed
down in Société Cinéthèque v. FNCF(1),
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
RENTAL AND LENDING RIGHT
Article 1
Object of harmonization
1. InaccordancewiththeprovisionsofthisChapter,MemberStates
shall provide, subject to Article 5, a right to authorize or prohibit therentalandlendingoforiginalsandcopiesofcopyrightworks,andothersubject matter as set out in Article 2 (1).
2. ForthepurposesofthisDirective,‘rental'meansmakingavailable
foruse,foralimitedperiodoftimeandfordirectorindirecteconomicor commercial advantage.
3. For the purposes of this Directive, ‘lending'means making avail-
able for use, for a limited period of time and not for direct or indirecteconomicorcommercialadvantage,whenitismadethroughestablish-ments which are accessible to the public.
4. Therightsreferredtoinparagraph1shallnotbeexhaustedbyany
sale or other act of distribution of originals and copies of copyrightworks and other subject matter as set out in Article 2 (1).
Article 2
Rightholders and subject matter of rental and lending right
1. The exclusive right to authorize or prohibit rental and lending
shall belong:
— to the author in respect of the original and copies of his work,— to the performer in respect of fixations of his performance,— to the phonogram producer in respect of his phonograms, and— to the producer of the first fixation of a film in respect of the
original and copies of his film. For the purposes of this Directive,the term ‘film' shall designate a cinematographic or audiovisualwork or moving images, whether or not accompanied by sound.
2. For the purposes of this Directive the principal director of a
cinematographicoraudiovisualworkshallbeconsideredasitsauthororoneofitsauthors.MemberStatesmayprovideforotherstobeconsid-ered as its co-authors.
3. ThisDirectivedoesnotcoverrentalandlendingrightsinrelation
to buildings and to works of applied art.
4. Therightsreferredtoinparagraph1maybetransferred,assigned
or subject to the granting of contractual licences.
5. Withoutprejudicetoparagraph7,whenacontractconcerningfilm
production is concluded, individually or collectively, by performerswith a film producer, the performer covered by this contract shall bepresumed, subject to contractual clauses to the contrary, to have trans-ferred his rental right, subject to Article 4.
6. MemberStatesmayprovideforasimilarpresumptionassetoutin
paragraph 5 with respect to authors.
7. Member States may provide that the signing of a contract
concluded between a performer and a film producer concerning theproduction of a film has the effect of authorizing rental, provided thatsuch contract provides for an equitable remuneration within the
(1) Cases 60/84 and 61/84, ECR 1985, p. 2605.
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meaning of Article 4. Member States may also provide that this para-
graph shall apply mutatis mutandis to the rights included in Chapter II.
Article 3
Rental of computer programs
This Directive shall be without prejudice to Article 4 (c) of Council
Directive 91/250/EEC of 14 May 1991 on the legal protection ofcomputer programs(
1).
Article 4
Unwaivable right to equitable remuneration
1. Where an author or performer has transferred or assigned his
rentalrightconcerningaphonogramoranoriginalorcopyofafilmtoaphonogramorfilmproducer,thatauthororperformershallretaintheright to obtain an equitable remuneration for the rental.
2. Therighttoobtainanequitableremunerationforrentalcannotbe
waived by authors or performers.
3. The administration of this right to obtain an equitable remu-
nerationmaybeentrustedtocollectingsocietiesrepresentingauthorsorperformers.
4. MemberStatesmayregulatewhetherandtowhatextentadminis-
tration by collecting societies of the right to obtain an equitable remu-neration may be imposed, as well as the question from whom thisremuneration may be claimed or collected.
Article 5
Derogation from the exclusive public lending right
1. Member States may derogate from the exclusive right provided
for in Article 1 in respect of public lending, provided that at leastauthorsobtainaremunerationforsuchlending.MemberStatesshallbefree to determine this remuneration taking account of their culturalpromotion objectives.
2. When Member States do not apply the exclusive lending right
provided for in Article 1 as regards phonograms, films and computerprograms, they shall introduce, at least for authors, a remuneration.
3. Member States may exempt certain categories of establishments
fromthepaymentoftheremunerationreferredtoinparagraphs1and2.
4. The Commission, in cooperation with the Member States, shall
draw up before 1 July 1997 a report on public lending in theCommunity.ItshallforwardthisreporttotheEuropeanParliamentandto the Council.
CHAPTER II
RIGHTS RELATED TO COPYRIGHT
Article 6
Fixation right
1. MemberStatesshallprovideforperformerstheexclusiverightto
authorize or prohibit the fixation of their performances.
2. Member States shall provide for broadcasting organizations the
exclusive right to authorize or prohibit the fixation of their broadcasts,whether these broadcasts are transmitted by wire or over the air,including by cable or satellite.
(1) OJ No L 122, 17. 5. 1991, p. 42.
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3. A cable distributor shall not have the right provided for in para-graph 2 where it merely retransmits by cable the broadcasts of broad-casting organizations.
Article 7
Reproduction right
1. Member States shall provide the exclusive right to authorize or
prohibit the direct or indirect reproduction:
— for performers, of fixations of their performances,— for phonogram producers, of their phonograms,— forproducersofthefirstfixationsoffilms,inrespectoftheoriginal
and copies of their films, and
— for broadcasting organizations, of fixations of their broadcasts, as
set out in Article 6 (2).
2. The reproduction right referred to in paragraph 1 may be trans-
ferred, assigned or subject to the granting of contractual licences.
Article 8
Broadcasting and communication to the public
1. MemberStatesshallprovideforperformerstheexclusiverightto
authorize or prohibit the broadcasting by wireless means and thecommunication to the public of their performances, except where theperformanceisitselfalreadyabroadcastperformanceorismadefromafixation.
2. MemberStatesshallprovidearightinordertoensurethatasingle
equitableremunerationispaidbytheuser,ifaphonogrampublishedforcommercialpurposes,orareproductionofsuchphonogram,isusedforbroadcastingbywirelessmeansorforanycommunicationtothepublic,and to ensure that this remuneration is shared between the relevantperformers and phonogram producers. Member States may, in theabsence of agreement between the performers and phonogram produ-cers, lay down the conditions as to the sharing of this remunerationbetween them.
3. Member States shall provide for broadcasting organizations the
exclusive right to authorize or prohibit the rebroadcasting of theirbroadcasts by wireless means, as well as the communication to thepublic of their broadcasts if such communication is made in placesaccessible to the public against payment of an entrance fee.
Article 9
Distribution right
1. Member States shall provide
— for performers, in respect of fixations of their performances,— for phonogram producers, in respect of their phonograms,— forproducersofthefirstfixationsoffilms,inrespectoftheoriginal
and copies of their films,
— forbroadcastingorganizations,inrespectoffixationsoftheirbroad-
cast as set out in Article 6 (2),
the exclusive right to make available these objects, including copies
thereof, to the public by sale or otherwise, hereafter referred to as the‘distribution right'.
2. The distribution right shall not be exhausted within the
Communityinrespectofanobjectasreferredtoinparagraph1,exceptwhere the first sale in the Community of that object is made by therightholder or with his consent.
3. The distribution right shall be without prejudice to the specific
provisions of Chapter I, in particular Article 1 (4).
4. The distribution right may be transferred, assigned or subject to
the granting of contractual licences.
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Article 10
Limitations to rights
1. MemberStatesmayprovideforlimitationstotherightsreferredto
in Chapter II in respect of:
(a) private use;
(b) use of short excerpts in connection with the reporting of current
events;
(c) ephemeral fixation by a broadcasting organization by means of its
own facilities and for its own broadcasts;
(d) use solely for the purposes of teaching or scientific research.
2. Irrespective of paragraph 1, any Member State may provide for
the same kinds of limitations with regard to the protection of perfor-mers, producers of phonograms, broadcasting organizations and ofproducersofthefirstfixationsoffilms,asitprovidesforinconnectionwiththeprotectionofcopyrightinliteraryandartisticworks.However,compulsory licences may be provided for only to the extent to whichthey are compatible with the Rome Convention.
3. Paragraph1(a)shallbewithoutprejudicetoanyexistingorfuture
legislation on remuneration for reproduction for private use.
CHAPTER III
DURATION
▼M1
▼B
CHAPTER IV
COMMON PROVISIONS
Article 13
Application in time
1. This Directive shall apply in respect of all copyright works,
performances, phonograms, broadcasts and first fixations of filmsreferredtointhisDirectivewhichare,on1July1994,stillprotectedbythelegislationoftheMemberStatesinthefieldofcopyrightandrelatedrights or meet the criteria for protection under the provisions of thisDirective on that date.
2. ThisDirectiveshallapplywithoutprejudicetoanyactsofexploi-
tation performed before 1 July 1994.
3. Member States may provide that the rightholders are deemed to
have given their authorization to the rental or lending of an objectreferredtoinArticle2(1)whichisproventohavebeenmadeavailabletothirdpartiesforthispurposeortohavebeenacquiredbefore1July1994.However,inparticularwheresuchanobjectisadigitalrecording,Member States may provide that rightholders shall have a right toobtainanadequateremunerationfortherentalorlendingofthatobject.
4. Member States need not apply the provisions of Article 2 (2) to
cinematographic or audiovisual works created before 1 July 1994.
5. MemberStatesmaydeterminethedateasfromwhichtheArticle
2 (2) shall apply, provided that that date is no later than 1 July 1997.
6. ThisDirectiveshall,withoutprejudicetoparagraph3andsubject
to paragraphs 8 and 9, not affect any contracts concluded before thedate of its adoption.
7. Member States may provide, subject to the provisions of para-
graphs8and9,thatwhenrightholderswhoacquirenewrightsunderthenational provisions adopted in implementation of this Directive have,before 1 July 1994, given their consent for exploitation, they shall bepresumed to have transferred the new exclusive rights.
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8. MemberStatesmaydeterminethedateasfromwhichtheunwaiv-able right to an equitable remuneration referred to in Article 4 exists,provided that that date is no later than 1 July 1997.
9. For contracts concluded before 1 July 1994, the unwaivable right
toanequitableremunerationprovidedforinArticle4shallapplyonlywhereauthorsorperformersorthoserepresentingthemhavesubmitteda request to that effect before 1 January 1997. In the absence ofagreement between rightholders concerning the level of remuneration,Member States may fix the level of equitable remuneration.
Article 14
Relation between copyright and related rights
Protection of copyright-related rights under this Directive shall leave
intact and shall in no way affect the protection of copyright.
Article 15
Final provisions
1. Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive notlater than 1 July 1994. They shall forthwith inform the Commissionthereof.
When Member States adopt these measures, they shall contain a refer-
encetothisDirectiveorshallbeaccompaniedbysuchreferenceatthetime of their official publication. The methods of making such a refer-ence shall be laid down by the Member States.
2. Member States shall communicate to the Commission the main
provisionsofdomesticlawwhichtheyadoptinthefieldcoveredbythisDirective.
Article 16
This Directive is addressed to the Member States.