1992L0100 — EN — 22.06.2001 — 002.001 — 1
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►B COUNCIL DIRECTIVE 92/100/EEC
of 19 November 1992
onrental right andlending right andoncertain rights related tocopyright inthe field of intellectual
property
(OJ L 346, 27.11.1992, p. 61)
Amended by:
OfficialJournal
No page date
►M1 CouncilDirective 93/98/EEC of 29 October 1993 L 290 9 24.11.1993
►M2 Directive 2001/29/EC of the European Parliament and of the Council of
22 May 2001 L 167 10 22.6.2001
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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 proposalfrom the Commission (
1),
In cooperation with the European Parliament (2),
Having regard to the opinion of the Economic and SocialCommittee (3),
Whereas differences exist in the legal protection provided by the laws
and practices of the Member States for copyright works and subjectmatter of related rights protection as regards rental and lending; whereas
such differences are sources of barriers to trade and distortions of
competition which impede the achievement and proper functioning ofthe internalmarket;
Whereas such differences in legal protection could well become greater
as Member States adopt new and different legislation or as nationalcase-law interpreting such legislation develops differently;
Whereas such differences should therefore be eliminated in accordance
with the objective of introducing an area without internalfrontiers as setout in Article 8a of the Treaty so as to institute, pursuant to Article 3 (f)of the Treaty, a system ensuring that competition in the common marketis not distorted;
Whereas rentaland l ending of copyright works and the subject matter of
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;
Whereas the adequate protection of copyright works and subject matter
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 broadcast
and communication to the public can accordingly be considered as being
of fundamentalimportance for the Community's economic and cul turaldevelopment;
Whereas copyright and related rights protection must adapt to new
economic developments such as new forms of exploitation;
Whereas the creative and artistic work of authors and performers
necessitates an adequate income as a basis for further creative and
artistic work, and the investments required particularly for the
production of phonograms and films are especially high and risky;whereas the possibility for securing that income and recouping thatinvestment can only effectively be guaranteed through adequate legalprotection of the rightholders concerned;
Whereas these creative, artistic and entrepreneurialactivities are, to a
large extent, activities of self-employed persons; whereas the pursuit ofsuch activities must be made easier by providing a harmonized legalprotection within the Community;
Whereas, to the extent that these activities principally constitute
services, their provision must equally be facilitated by the establishmentin the Community of a harmonized legal framework;1992L0100 — EN — 22.06.2001 — 002.001 — 2
(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 the legislation of the Member States should be approximated in
such a way so as not to conflict with the international conventions onwhich many Member States' copyright and related rights laws are based;
Whereas the Community's legal framework on the rental right and
lending right and on certain rights related to copyright can be limited toestablishing that Member States provide rights with respect to rental and
lending for certain groups of rightholders and further to establishing the
rights of fixation, reproduction, distribution, broadcasting and commu-nication to the public for certain groups of rightholders in the field ofrelated rights protection;
Whereas it is necessary to define the concepts of rentaland l ending for
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 of making
available, as for instance making available phonograms or films
(cinematographic or audiovisualworks or moving images, whether ornot accompanied by sound) for the purpose of public performance orbroadcasting, making available for the purpose of exhibition, or makingavailable for on-the-spot reference use; whereas lending within themeaning of this Directive does not include making available between
establishments which are accessible to the public;
Whereas, where lending by an establishment accessible to the public
gives rise to a payment the amount of which does not go beyond what isnecessary to cover the operating costs of the establishment, there is no
direct or indirect economic or commercialadvantage within the meaning
of this Directive;
Whereas it is necessary to introduce arrangements ensuring that an
unwaivable equitable remuneration is obtained by authors and
performers who must retain the possibility to entrust the administration
of this right to collecting societies representing them;
Whereas the equitable remuneration may be paid on the basis of one or
severalpayments an any time on or after the concl usion of the contract;
Whereas the equitable remuneration must take account of the
importance of the contribution of the authors and performers concernedto the phonogram or film;
Whereas it is also necessary to protect the rights at least of authors as
regards public lending by providing for specific arrangements; whereas,however, any measures based on Article 5 of this Directive have tocomply with Community law, in particular with Article 7 of the Treaty;
Whereas the provisions of Chapter II do not prevent Member States
from extending the presumption set out in Article 2 (5) to the exclusiverights included in that chapter; whereas furthermore the provisions ofChapter II do not prevent Member States from providing for a rebuttablepresumption of the authorization of exploitation in respect of the
exclusive rights of performers provided for in those articles, in so far as
such presumption is compatible with the International Convention forthe Protection of Performers, Producers of Phonograms and Broad-casting Organizations (hereinafter referred to as the Rome Convention);
Whereas Member States may provide for more farreaching protection
for owners of rights related to copyright than that required by Article 8of this Directive;
Whereas the harmonized rentaland l ending 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 ofmedia exploitation chronology, as recognized in the Judgment handeddown in Société Cinéthèque v. FNCF (
1),1992L0100 — EN — 22.06.2001 — 002.001 — 3
(1) Cases 60/84 and 61/84, ECR 1985, p. 2605.
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HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
RENTAL AND LENDING RIGHT
Article 1
Object of harmonization
1. In accordance with the provisions of this Chapter, Member States
shall provide, subject to Article 5, a right to authorize or prohibit the
rental and lending of originals and copies of copyright works, and othersubject matter as set out in 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 commercialadvantage.
3. For the purposes of this Directive, ‘lending’ means making
available for use, for a limited period of time and not for direct orindirect economic or commercialadvantage, when it is made throughestablishments which are accessible to the public.
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 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 originaland 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 audiovisual work or
moving images, whether or not accompanied by sound.
2. For the purposes of this Directive the principaldirector of a
cinematographic or audiovisualwork shal lbe considered as its author orone of its authors. Member States may provide for others to beconsidered as its co-authors.
3. This Directive does not cover rental and lending rights in relation
to buildings and to works of applied art.
4. The rights referred to in paragraph 1 may be transferred, assigned
or subject to the granting of contractuall icences.
5. Without prejudice to paragraph 7, when a contract concerning film
production is concluded, individually or collectively, by performers with
a film producer, the performer covered by this contract shall be
presumed, subject to contractualcl auses to the contrary, to havetransferred his rentalright, subject to Articl e 4.
6. Member States may provide for a similar presumption as set out in
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 meaningof Article 4. Member States may also provide that this paragraph shallapply mutatis mutandis to the rights included in Chapter II.1992L0100 — EN — 22.06.2001 — 002.001 — 4
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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 rental
right concerning a phonogram or an originalor copy of a fil m to aphonogram or film producer, that author or performer shall retain theright to obtain an equitable remuneration for the rental.
2. The right to obtain an equitable remuneration for rental cannot be
waived by authors or performers.
3. The administration of this right to obtain an equitable remuneration
may be entrusted to collecting societies representing authors orperformers.
4. Member States may regulate whether and to what extent
administration by collecting societies of the right to obtain an equitableremuneration 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 least authorsobtain a remuneration for such lending. Member States shall be free to
determine this remuneration taking account of their cultural promotion
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
from the payment of the remuneration referred to in paragraphs 1 and 2.
4. The Commission, in cooperation with the Member States, shall
draw up before 1 July 1997 a report on public lending in theCommunity. It shall forward this report to the European Parliament
and to the Council.
CHAPTER II
RIGHTS RELATED TO COPYRIGHT
Article 6
Fixation right
1. Member States shall provide for performers the exclusive right to
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.
3. A cable distributor shall not have the right provided for in
paragraph 2 where it merely retransmits by cable the broadcasts ofbroadcasting organizations.1992L0100 — EN — 22.06.2001 — 002.001 — 5
(1) OJ No L 122, 17. 5. 1991, p. 42.
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Article 8
Broadcasting and communication to the public
1. Member States shall provide for performers the exclusive right to
authorize or prohibit the broadcasting by wireless means and the
communication to the public of their performances, except where the
performance is itself already a broadcast performance or is made from afixation.
2. Member States shall provide a right in order to ensure that a single
equitable remuneration is paid by the user, if a phonogram published for
commercialpurposes, or a reproduction of such phonogram, is used forbroadcasting by wireless means or for any communication to the public,and to ensure that this remuneration is shared between the relevantperformers and phonogram producers. Member States may, in the
absence of agreement between the performers and phonogram
producers, 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 their
broadcasts 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,
— for producers of the first fixations of films, in respect of the original
and copies of their films,
— for broadcasting organizations, in respect of fixations of their
broadcast 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 Community
in respect of an object as referred to in paragraph 1, except where thefirst sale in the Community of that object is made by the rightholder orwith 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 contractuall icences.
Article 10
Limitations to rights
1. Member States may provide for limitations to the rights referred to
in Chapter II in respect of:
(a) private use;
(b) use of short excerpts in connection with the reporting of current
events;
(c) ephemeralfixation 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 performers,1992L0100 — EN — 22.06.2001 — 002.001 — 6
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producers of phonograms, broadcasting organizations and of producers
of the first fixations of films, as it provides for in connection with theprotection of copyright in literary and artistic works. However,
compulsory licences may be provided for only to the extent to which
they are compatible with the Rome Convention.
3. The limitations shall only be applied in certain special cases which
do not conflict with a normal exploitation of the subject-matter and donot unreasonably prejudice the legitimate interests of the rightholder.
CHAPTER III
DURATION
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 filmsreferred to in this Directive which are, on 1 July 1994, still protected bythe legislation of the Member States in the field of copyright and relatedrights or meet the criteria for protection under the provisions of this
Directive on that date.
2. This Directive shall apply without prejudice to any acts of
exploitation performed before 1 July 1994.
3. Member States may provide that the rightholders are deemed to
have given their authorization to the rentalor l ending of an object
referred to in Article 2 (1) which is proven to have been made availableto third parties for this purpose or to have been acquired before 1 July1994. However, in particular where such an object is a digital recording,Member States may provide that rightholders shall have a right to obtain
an adequate remuneration for the rentalor l ending of that object.
4. Member States need not apply the provisions of Article 2 (2) to
cinematographic or audiovisualworks created before 1 Jul y 1994.
5. Member States may determine the date as from which the Article 2
(2) shall apply, provided that that date is no later than 1 July 1997.
6. This Directive shall, without prejudice to paragraph 3 and subject
to paragraphs 8 and 9, not affect any contracts concluded before the dateof its adoption.
7. Member States may provide, subject to the provisions of
paragraphs 8 and 9, that when rightholders who acquire new rightsunder the nationalprovisions adopted in impl ementation of thisDirective have, before 1 July 1994, given their consent for exploitation,they shall be presumed to have transferred the new exclusive rights.
8. Member States may determine the date as from which the
unwaivable right to an equitable remuneration referred to in Article 4exists, provided that that date is no later than 1 July 1997.
9. For contracts concluded before 1 July 1994, the unwaivable right
to an equitable remuneration provided for in Article 4 shall apply only
where authors or performers or those representing them have submitteda 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.1992L0100 — EN — 22.06.2001 — 002.001 — 7
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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 not
later than 1 July 1994. They shall forthwith inform the Commission
thereof.
When Member States adopt these measures, they shall contain a
reference to this Directive or shall be accompanied by such reference atthe time of their officialpubl ication. The methods of making such areference shall be laid down by the Member States.
2. Member States shall communicate to the Commission the main
provisions of domestic law which they adopt in the field covered by this
Directive.
Article 16
This Directive is addressed to the Member States.1992L0100 — EN — 22.06.2001 — 002.001 — 8