COMMISSION OF THE EUROPEAN COMMUNITIES 
C0M(92) 159 final - SYN 319 
Brussels, 30 April 1992 
Amended proposal for a 
COUNCIL DIRECTIVE 
ON RENTAL RIGHT AND LENDING RIGHT AND ON CERTAIN 
RIGHTS RELATED TO COPYRIGHT IN THE FIELD OF 
INTELLECTUAL PROPERTY 
(presented by the Commission pursuant to Article 149(3) 
of the EEC-Treaty) 
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EXPLANATORY MEMORANDUM 
On 13 December 1990, the Commission presented to the Council Its proposal 
for a Council Directive on rental right, lending right, and on certain 
rights related to copyright. 
The Economic and Social Committee delivered Its opinion on the proposal on 
3 July 1991. 
The European Parliament, consulted under the cooperation procedure, 
discussed the proposal In detail In Its Committees and on 11 February 1992 
debated the report drawn up on behalf of the Committee on Legal Affairs and 
Citizens' rights by Mr. Anastassopoulos, voting in support of the proposed 
Directive as amended by Parliament on 12 February 1992. 
The amended proposal for a Directive presented by the European Commission is 
intended to take Into account the Opinion of the European Parliament. 
The amended proposal contains six major modifications to the original 
proposal. 
(a) In the definitions of rental and lending, It Is explicitly clarified 
that rental and lending for the purpose of public performance Is not 
covered. Accordingly, In particular the rental of film copies to 
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cinemas for the purpose of performance, to broadcasting organisations 
for the purpose of broadcasting, as well as the rental of sheet music 
for the purpose of performance, remains excluded from the scope of the 
Direct Ive. 
(b) In the context of the determination of the rightholders, it Is stated 
that at least the principal director of a cinematographic work shall be 
its author. While this already corresponds to the legal situation in 
most Member States, it seems useful to take up the proposal of the 
European Parliament and to safeguard the legal protection for this 
Important group of creative persons in all Member States. This does not 
prejudice any possible harmonlsatIon of authorship of films but is 
rather a minimum provision which leaves it to Member States to 
determine in detail, which other contributors to a film should be 
considered to be its co-authors under national law. 
(c) On the basis of the proposal of the European Parliament and with 
respect, in particular, to the concerns of the film industry and to 
considerations of practicabiI Ity, the amended proposal provides for a 
rebuttable presumption of rights in favour of film producers, according 
to which performing artists are presumed to have assigned their 
exclusive rental right, lending right, reproduction right and 
distribution right to film producers In the contract concerning film 
production. This will considerably facilitate in practice the 
exploitation of films by film producers. This potential loss of rights 
for performing artists is compensated to a certain extent, as the 
presumption of assignment Is rebuttable and subject to the right of 
economic participation in the revenues from exploitation under Article 
3 of the proposed Directive. 
(d) Following the Opinion of the European Parliament, the Commission In the 
new Article 4 bis proposes both a consolidation and, In part, a larger 
scope of protection, as no changes, cuts or additions may be made to a 
work by the person making available for rental, the renter, the lender 
or the borrower without specific authorization of the author. This 
amendment concerns some aspects of moral rights which Member States In 
general recognize as such. This partial harmonlsation 
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of authors' moral rights In the field of rental and lending is not 
Intended to prejudice a possible future harmonlsation of moral rights 
In the Community; It rather constitutes a minimum rule which does not 
Interfere with general national provisions on moral rights. Member 
States may go beyond this rule also in respect of rental and lending. 
(e) As a supplement to chapter II of the proposed Directive which is mainly 
dedicated to the fight against piracy, the new Article 6 bis follows 
the proposal made by the European Parliament and provides an exclusive 
right of broadcasting and communication to the public for performing 
artists and broadcasting organisations, as well as a right to 
remuneration for performing artists and phonogram producers If a 
phonogram published for commercial purposes Is used for broadcasting or 
communication to the public. In the proposed formulation, these rights 
largely correspond to the provisions of the Rome Convention for the 
protection of performers, producers of phonograms and broadcasting 
organisations of 1961, but go to some extent beyond the protection 
provided in this Convention due to the widespread practice of piracy. 
Here, too, the proposed protection is already Implemented in most 
Member States, with some differences In detail. It therefore seems 
useful, also in view of the problems caused by piracy, to extend 
harmonlsation for neighbouring right holders to the right of 
broadcasting and communication to the public. This protection also 
constitutes a common minimum level which Member States may exceed in 
their national law, as Is already often the case. Article 6 bis 
paragraph 4 ensures that no divergent legislation is enacted at 
Community level, by stating that the specifically relevant provisions 
of the proposed Directive on satellite broadcasting and retransmission 
by cable, which is at present under consideration, will not be 
prejudiced. 
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(f) In order to achieve harmonlsation as early as possible, the Commission 
in its original proposal had provided for an immediate application of 
the Directive to all protected works and subject matter. Later on, 
certain groups of users and producers In particular have asked for an 
explicit transitional period, In order to take better account of 
acquired rights and obligations. As suggested by the European 
Parliament, the Commission meets this request in its amended proposal 
In Article 11 paragraph 2. In particular, under this provision the 
Directive will in principle apply as of Its entry into force, but will 
not affect existing contractual rights and obligations for a period of 
three years from jts entry Into force. Contracting parties are thus 
given the possibility of adapting their contracts to the provisions of 
the Directive within a transitional period of three years. 
Only two of the amendments proposed by the Parliament were not adopted by 
the Commission in its amended proposal. 
The addition to recital n" 15 which was suggested by the Parliament was 
connected with a previously proposed amendment concerning a remuneration for 
private copying, which already had been rejected by the Committee on Legal 
Affairs and Citizens' rights and was not tabled any more In the Parliament. 
With the deletion of this previously proposed amendment, the suggested 
addition to recital n" 15 has lost its function, too, and cannot be adopted 
by the Commission for reasons of the coherence of the text as a whole. 
The proposed amendment n* 36 concerning Article 11 paragraph 1 has not been 
accepted, as It does not add anything to the original proposal of the 
Commission and appears to be rather less precise. Instead, the amended 
proposal contains a different addition of a clarifying character to this 
provIslon. 
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Commentary on the title and the recitals 
With respect to the additional or modified provisions of the Directive, the 
Commission has included additional recitals or additions to existing 
recitals in its proposal. 
Title 
In accordance with the Opinion of the European Parliament, the words "in the 
field of intellectual property" have been added to the title of the 
proposal. This constitutes a useful clarification, as it explicitly states 
that the Directive does not cover the rental or lending of housing, cars or 
the like, which is Irrelevant under copyright. However, for this purpose, 
the addition has to be placed at the end of the title. The second amendment 
in the title, which is not relevant in all language versions, serves the 
purpose of clarification. The normally used expression "neighbouring rights" 
becomes clearer In the formulation "rights related to copyright". This 
formulation shows that these rights are related to copyright rather than to 
rental or lending. 
Recital n' 3 
The additional reference to Article 3f EEC-Treaty serves the purpose of 
clarification and does not change the purpose of the Directive. 
Recital n' 5 
In view of the new Article 6 bis, a reference to the right of broadcasting 
and to the right of communication to the public has been added to this 
reeltal . 
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Recital n' 7. 
The proposed amendment specifies that an adequate legal protection is 
necessary for "the first rlghtholders concerned". This means In the context 
of the original text of recital n" 7 that creative and artistic persons -
authors and performing artists - as well as organisational and economic 
contributors - producers of phonograms and films, broadcasters - are 
entitled to legal protection where their works and efforts are concerned by 
the exploitation. 
Recital n' 10 
The Commission has accepted the clarifying proposed amendment to recital n* 
10, since it duly stresses once again the consideration expressed In recital 
n* 9. According to this consideration, the activities which the provision of 
the Directive intends to facilitate, are "to a large extent" self-employed 
activities or services. Thereby It is clarified at the same time that the 
Directive does not deal mainly with the rights and Interests of employees as 
such In relation to their employers. Where rlghtholders are at the same time 
employees, their relationship to their employers are covered by this 
directive only as a consequence of its structure. 
Recital n- 15 
In view of the new Article 6 bis, a reference to the right of broadcasting 
and to the right of communication to the public has been added to this 
recital. 
Recital n' 15a 
This additional recital is also a consequence of the Introduction of the new 
Article 6 bis, as it states that the rights Included therein are minimum 
rIghts. 
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Rftdtal n- 15b 
As was already evident from the original proposal for a Directive by the 
Commission and Its explanatory memorandum, the Commission holds the view 
that it would not be useful to define In this Directive which only deals 
with certain aspects of copyright, the groups of rightholders it covers. 
This view is now explicitly confirmed In the new recital n* 15b, based on 
the proposal of the European Parliament. Since the Directive itself 
intentionally does not contain a definition, the groups of rightholders 
therefore have to be clearly defined in the national law of the Member 
States. This is mostly already the case. 
Recital n* 16a 
The Commission accepts the consideration which is underlying the proposal of 
the Parliament for the additional recital n* 16a. According to this 
consideration, Member States should review, after the Implementation of this 
Directive, In certain cases their relations to such third countries where 
the Directive may create a new situation, with a view to the possible 
conclusion of agreements on mutual legal protection. The formulation has 
been modified In the amended proposal for the sake of clarity. 
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Commentary on the Articles 
Article 1 paragraph 2 
The Commission accepts the amendments proposed by the Parliament to 
Article 1 paragraph 2 of the original proposal since they render the 
definition of rental more precise without changing the substance or the main 
purpose of the Directive. In the view of the Commission this is true In 
particular for the first amendment which replaces the term "for profit 
making purposes" by the formulation "for direct or indirect economic 
advantage". This sentence which has been added to paragraph 2 is of a 
clarifying character, too. While already the original proposal Intended to 
cover the frequent exploitation in the form of rental to the "last user", it 
is now explicitly stated that rental for the purpose of public performance 
remains outside the scope of the Directive. This concerns In particular the 
rental of film copies to cinemas or the rental of sheet music for the 
purpose of performance of music. The language ("public performance") has 
been adapted to the French version which Is correct In substance. 
Article 1 paragraph 3 
The Parliament's proposal for Article 1 paragraph 3 also Includes two 
amendments : the new second sentence contains the same precision for the 
definitions of lending for the purpose of public performance as Is provided 
for rental. The Commission accepts this amendment with reference to the 
comments on Article 1 paragraph 2. Due to the second amendment, the deletion 
of the word "direct" in the first part of the paragraph, the scope of 
lending has been limited in favour of rental. Thus, activities in particular 
of those institutions which act towards users like public libraries but 
which pursue indirect profit making purposes, are considered to be rental 
rather than lending. The Commission accepts this amendment since it draws an 
even clearer distinction between rental and lending. 
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Art icle 1 paragraph 4 
The Commission has accepted the Parliament's drafting amendment on Article 1 
paragraph 4, as It constitutes no change in substance. Like the original 
text, the new formulation is intended to state that the exclusive rental 
right and the lending right as referred to in Article 1 paragraph 1, are not 
affected by any sale or other act of distribution of originals or copies of 
works or other subject matter, and remain valid. 
Article 2 paragraph 2 
The Commission has accepted the proposal of the European Parliament that at 
least the principal director of a cinematographic work shall be considered 
to be its author. At least in the context of this Directive, It is thereby 
guaranteed that these creative persons obtain legal protection as authors 
throughout the Community and no longer suffer disadvantages In some Member 
States due to a lack of protection. Without prejudice to a possible overall 
harmonlsation of authorship of cinematographic works, it seems therefore 
useful to Include the provision the Parliament has proposed. The formulation 
of this paragraph has been adjusted In order to state even more clearly the 
purpose of the provision and to clarify that Its application Is limited to 
the scope of this Directive and that It only Is a minimum harmonlsation. 
Article 2 paragraph 4 
The proposal for amendment of Article 2 paragraph 4 which has been accepted 
by the Commission does not change the substance, but only takes Into account 
that the Directive on the legal protection of computer programs was In the 
meantime adopted by the Council. 
10 
Article 2 paragraph 5 
The original proposal of the Commission did not contain any specific 
provisions on the relations between performing artists and producers of 
cinematographic works, but rather left it to Member States whether and if so 
how to deal with this relation. The Commission now follows the opinion of 
the European Parliament pursuant to the request of the film Industry to deal 
with this relation with respect to the exclusive rental and lending right 
In the framework of this Directive on Community level. This means a major 
facilitation of the exploitation of films for film producers throughout the 
Community on equal terms. In order to compensate the performing artist for 
this potential weakening of his legal position with a minimum protection, 
the presumption of assignment is rebuttable and subject to a written 
contract as well as to the economic participation under Article 3. The 
amended proposal extends the scope of this provision, as compared with the 
wording proposed by the Parliament, for the benefit of producers beyond work 
contracts to a I I contracts, and includes some minor modifications to the 
formulation in order to safeguard the coherence with the other provisions of 
this Directive. 
Article 3 
The Parliament's proposed amendment to the first sentence has been accepted 
by the Commission to the extent that It constitutes a more precise 
formulation of the original proposal. The other proposals of the Parliament 
have been accepted subject to modifications which appear necessary for the 
sake of clar i ty. 
The amended proposal adopts the Idea of the Parliament to further specify In 
an additional second sentence the part of the revenues which are the object 
of the right under Article 3, but presents this idea in a slightly modified 
and, in the view of the Commission, even more precise formulation as 
compared with the Parliament's proposal. According to this formulation, the 
importance of the contribution of the rightholders concerned to the sound 
recording, visual recording or visual and sound recording has to be taken 
Into account for the distribution of the revenues. In conformity with Its 
original proposal and pursuant to the proposal of the Parliament, the 
Commission presumes that the creative and artistic contributions of authors 
and performing artists are of major Importance for the exploitation of the 
work, as for Instance, they Influence the decision of the consumer to rent a 
part icular fIIm. 
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The amended proposal has adopted the Opinion of the European Parliament on 
the second part of the third sentence, but has chosen a clearer formulation 
in accordance with the Intended meaning. Accordingly, the right of authors 
and performing artists to obtain a share may be entrusted to collecting 
societies, representing the professional categories concerned, as they 
appear to be particularly qualified for this task. The terminology 
("entrusted") has been adapted to the French version which is correct In 
substance. 
Article 4 
No amendments were proposed by the European Parliament. 
Article 4 Pis 
Article 4 bis adds aspects of moral rights to the economic aspects of the 
rental and lending right. The provision which the Commission has 
Incorporated Into Its amended proposal from the Parliament contains a 
partial aspect of moral right. Most Member States already provide for a 
comprehensive protection of moral rights; it therefore seems useful to 
harmonize at least In respect of rental and lending, without preventing 
Member States from enacting more far-reaching moral rights in their national 
laws. 
Article 5 
No amendments were proposed by the European Parliament. 
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Article 6 
The Commission has followed the proposal of the Parliament to provide, with 
reference to the new Article 2 paragraph 5, a rebuttable presumption of 
assignment also for the right of reproduction, in the sense that the 
performing artist Is presumed to have assigned his exclusive right In the 
written contract to the film producer. This presumption of assignment is 
rebuttable by contractual provisions to the contrary, and is subject to the 
economic participation under Article 3 which applies here in Its substance. 
This presumption of assignment accommodates the interest of film producers 
In a facilitation of the exploitation of films also with respect to the 
reproduction right, without neglecting a certain minimum protection for 
performing artists. 
Article 6 bis 
With minor modifications in the formulation, the amended proposal adopts the 
proposition of the Parliament to add the basic rights of broadcasting and of 
communication to the public for certain holders of neighbouring rights to 
Chapter II of the Directive. Whereas, pursuant to chapter 2 of the Green 
Paper on Copyright, the original proposal was limited to forms of piracy In 
connection with material exploitation, the Commission now follows the 
Opinion of the Parliament and widens the scope of the Directive to the area 
of piracy connected with non-material exploitation, by Inserting a new 
Article 6 bis. Here, the amended proposal follows to a large extent the 
minimum provisions of the Rome Convent Ion of 1961, In order to achieve, for 
the time being, an equal minimum protection In the Community. It Is up to 
the Member States, to maintain or Introduce a more far-reaching protection. 
Article 6 bis paragraph 1 
As a minimum provision, paragraph 1 of the newly added Article 6 bis 
provides for an exclusive right to broadcast and an exclusive right of 
communication to the public for performing artists In respect of their live 
performances. 
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Article 6 bis paragraph 2 
Paragraph 2 provides for a remuneration for performing artists and 
producers of phonograms, If a phonogram published for commercial purposes 
was used for broadcasting or for communication to the public. This provision 
has been implemented in principle by most Member States in their law; it Is 
a minimum provision. 
Article 6 bis paragraph 3 
Paragraph 3, modelled on Article 13 (a) and (d) of the Rome Convention, 
provides for an exclusive right of rebroadcastIng for broadcasting 
organisations and, correcting a drafting mistake In the Parliament's 
proposal, for an exclusive right of communication to the public of 
television broadcasts under the conditions already mentioned in the Rome 
Convention. 
Article 6 bis paragraph 4 
Paragraph 4 states clearly that the provisions of Article 6 bis may only be 
applied without prejudice to the specifically relevant provisions of the 
Directive on cable and satellite broadcasting (Proposal for a Council 
Directive COM (91) 276 final - SYN 358) which has not yet been adopted by 
the Council. Therefore, these provisions of the cable and satellite 
Directive prevail over those of Article 6 bis, if they are In contradiction. 
For the time being, the cable and satellite Directive provides as a minimum 
protection performing artists with an exclusive right of communication to 
the public by satellite In respect of their live performances, performing 
artists and/or producers of phonograms with a remuneration for the 
communication to the public of a phonogram published for commercial 
purposes, and broadcasting organisations with the exclusive right of 
simultaneous rebroadcasting by satellite. Article 6 bis provides for a more 
far-reaching protection, as it contains In particular the right to 
broadcast, without limiting it to the broadcasting by satellite, and in 
addition the remuneration for broadcasting for performing artists and 
producers of phonograms as well as the right of communication to the public 
Since the cable and satellite Directive only constitutes a minimum 
protection, Article 6 bis in this respect does not create any contradiction 
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Article 7 
In its amended proposal, the Commission adopts the proposal of the 
Parliament to apply the presumption of assignment under Article 2 
paragraph 5 to the distribution right also. Thus, also In respect of the 
distribution right, the performing artist is presumed to have assigned his 
exclusive right to the film producer In their written contract. Here, the 
same considerations apply as for the application of the presumption to the 
reproduction right (Article 6). 
Article 8 
No amendments were proposed by the European Parliament. 
Article 9 
No amendments were proposed by the European Parliament. 
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Article 10 
No amendments were proposed by the European Parliament 
Article 11 paragraph 1 
The amendment n* 36 proposed by the Parliament for Article 11 paragraph 1 
(originally the only paragraph of Article 11) intended to render the 
drafting more concise. It cannot be accepted by the Commission, because It 
would rather give rise to misunderstandings without adding anything in 
substance. Instead, the amended proposal Includes a supplement to Article 11 
paragraph 1, due to the inclusion of the new paragraph 2, which now more 
clearly defines both paragraphs of Article 11 In their relation to each 
other. 
Article 11 paragraph 2 
According to the original proposal, the Directive applied without exception 
to all subject matter covered therein, which was still protected on 
1 January 1993. Since some considered this provision to go too far in its 
effects, the Commission now follows the proposal made by the Parliament, to 
grant a transitional period of three years In order to enable contracting 
parties to adjust their contracts to the new legal situation within this 
period. At the latest three years after the entry Into force of the 
Directive, the provisions of the Directive would then have to be observed 
without exception. The Commission considers it useful to complement this 
transitional period by a provision which states some kind of good faith 
protection for the continued use of such objects for rental or lending which 
had already previously been acquired or made available. The last sentence of 
paragraph 2 takes account of this particular situation. 
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Article 11 bis 
Pursuant to the Opinion of the Parliament, Article 11 bis includes a new 
provision which corresponds to a generally recognized principle and is 
already included In its substance in Article 1 of the Rome Convention for 
the protection of performers, producers of phonograms and broadcasting 
organisations. Since most Member States already adhere to this convention or 
are in the process of adjusting their legislation to this convention, the 
Inclusion of Article 11 bis only serves to clarify that this principle is 
also valid in the context of this Directive. The provision is of a general 
character and applies to the whole Directive. It Is therefore not placed in 
the first chapter as proposed by the Parliament, but in Chapter IV (Common 
Provisions). 
Article 12 
No amendments were proposed by the European Parliament 
Article 13 
No amendments were proposed by the European Parliament 
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ORIGINAL PROPOSAL AMENDED PROPOSAL 
PROPOSAL FOR A COUNCIL DIRECTIVE 
ON RENTAL RIGHT. LENDING RIGHT. AND 
ON CERTAIN RIGHTS RELATED TO 
COPYRIGHT PROPOSAL FOR A COUNCIL DIRECTIVE 
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, THE COUNCIL OF THE EUROPEAN 
• COMMUNITIES, 
Having regard to the Treaty 
establishing the European Economic 
Community and in particular Articles 
57 (2), 66 and 100A thereof, unchanged 
Having regard to the proposal from 
the Commission, unchanged 
In co-operation with the European 
Par I lament, 
Having regard to the opinion of the 
Economic and Social Committee, 
Whereas differences exist In the 
legal protection provided by the 
laws and practices of the Member 
States for copyright works and 
subject matter of related rights 
protection as regards rental and 
lending, and such differences are 
sources of barriers to trade and 
distortions of competition which 
Impede the proper functioning of the 
internal market; unchanged 
unchanged 
unchanged 
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ORIGINAL PROPOSAL AMENDED PROPOSAL 
Whereas such differences in legal 
protection could well become greater 
as Member States adopt new and 
different legislation or as national 
Jurisprudence Interpreting such 
legislation develops differently; 
Whereas such differences should 
therefore be eliminated by 31 
December 1992 in accordance with the 
objective of Introducing an area 
without internal frontiers as set out 
in Article 8A of the Treaty, unchanged 
Whereas such differences should 
therefore be eliminated by 31 
December 1992 in accordance with the 
objective of introducing an area 
without internal frontiers as set 
out In Article 8A of the Treaty so 
as to establish, pursuant to Article 
3(f) of the EEC Treaty, a system 
ensuring that competition In the 
common market is not distorted; 
Whereas rental and lending of 
copyright works and the subject 
matter of related rights protection 
Is playing an increasingly important 
role In particular for creators, 
artists and a broad range of 
industries, and 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 the 
protection of the subject matter of 
related rights protection by the 
fixation right, reproduction right 
and distribution right can 
accordingly be considered as being of 
fundamental importance for the 
Community's industrial and cultural 
development; unchanged 
Whereas the adequate protection of 
copyright works and subject matter 
of related rights protection by 
rental and lending rights as well as 
the protection of the subject matter 
of related rights protection by the 
fixation right, reproduction right, 
distribution right, right to 
broadcast and communication to the 
public can accordingly be considered 
as being of fundamental importance 
for the Community's industrial and 
cultural development; 
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ORIGINAL PROPOSAL AMENDED PROPOSAL 
Whereas copyright and related rights 
protection must adapt to new economic 
developments such as new forms of 
exploltat ion; unchanged 
Whereas the creative and artistic 
work of authors and performing 
artists 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 
and the possibility for securing that 
Income and recouping that Investment 
can only effectively be guaranteed 
through adequate legal protection; Whereas the creative and artistic 
work of authors and performing 
artists 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 
and the possibility for securing 
that Income and recouping that 
investment can only effectively be 
guaranteed through adequate legal 
protection of the first rlghtholders 
concerned; 
Whereas without effective and 
harmonized protection throughout the 
Member States, such creative and 
artistic work as well as such 
investment might decrease or never be 
made; unchanged 
Whereas these creative, artistic and 
entrepreneurial activities are, to a 
large extent, activities of self-
employed persons, and the pursuit of 
such activities must be made easier 
by providing a uniform legal 
protection within the Community; unchanged 
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ORIGINAL PROPOSAL AMENDED PROPOSAL 
Whereas, to the extent that these 
activities constitute services, their 
provision must equally be facilitated 
by the establishment in the Community 
of a uniform legal framework; 
Whereas protection by rental and 
lending rights and protection in the 
field of rights related to copyright 
by existing legislation, 
administrative practice, and court 
jurisprudence does not exist at all 
In some Member States and, where it 
exists, Is not the same or has 
different characteristics; Whereas, to the extent that these 
activities principally constitute 
services, their provision must 
equally be facilitated by the 
establishment In the Community of a 
uniform legal framework; 
unchanged 
Whereas the uncoordinated development unchanged 
in the Community of legal protection 
in these fields in the Member States 
could result in the creation of new 
disincentives to trade to the 
detriment of further industrial and 
cultural development and of the 
completion of the internal market; 
Whereas existing differences having unchanged 
such effects need to be removed and 
new ones having a negative Impact on 
the functioning of the common market 
and the development of trade In 
cultural goods and services need to 
be prevented from arising; 
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ORIGINAL PROPOSAL AMENDED PROPOSAL 
Whereas the legislation of the Member 
States should be harmonized in such a 
way so as not to conflict with the 
existing international conventions on 
which many Member States' copyright 
and related rights laws are based; unchanged 
Whereas the Community's legal 
framework on the rental and lending 
right and on certain rights related 
to copyright can be limited to 
establishing that Member States 
provide rights with respect to rental 
and lending for certain groups of 
right owners and further to 
establishing the exclusive rights of 
fixation, reproduction and 
distribution for certain groups of 
right owners In the field of related 
rights protection; Whereas the Community's legal 
framework on the rental and lending 
right and on certain rights related 
to copyright can be limited to 
establishing that Member States 
provide rights with respect to 
rental and lending for certain 
groups of right owners and further 
to establishing the exclusive rights 
of fixation, reproduction, 
distribution, broadcasting and 
communication to the public for 
certain groups of right owners in 
the field of related rights 
protect ion; 
Whereas Member States may provide 
for more far-reaching protection for 
authors and owners of rights related 
to copyright than that required by 
Article 6 bis of this Directive; 
Whereas it is necessary for Member 
States to define clearly the groups 
of rlghtholders covered by this 
Direct Ive; 
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ORIGINAL PROPOSAL AMENDED PROPOSAL 
Whereas the harmonized rental and 
lending rights and the harmonized 
protection In the field of rights 
related to copyright should not be 
exercised in a way which constitutes 
a disguised restriction on trade 
between Member States; unchanged 
Whereas the harmonized legal 
protection resulting from the 
implementation of the provisions of 
this Directive may create a new 
situtatlon In regard to Member 
States' relations with certain third 
countries; whereas therefore It will 
be necessary to step up negotiations 
and consultations with such third 
countries. In particular within the 
relevant International 
organizations, with a view to 
securing at least reciprocal legal 
protect Ion; 
HAS ADOPTED THIS DIRECTIVE: HAS ADOPTED THIS DIRECTIVE: 
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ORIGINAL PROPOSAL AMENDED PROPOSAL 
CHAPTER I RENTAL AND LENDING RIGHT CHAPTER I RENTAL AND LENDING RIGHT 
Article 1 Object of Harmonization Article 1 Object of Harmonization 
(1) In accordance with the provisions 
of this Chapter, Member States 
shall provide a right to 
authorize or prohibit the rental 
and lending of originals and 
copies of copyright works, and 
other subject matter as set out 
in Article 2 (1). (1) unchanged 
(2) For the purposes of this 
Directive, "rental" means making 
available for use, for a limited 
period of time and for profit-
making purposes, without 
prejudice to paragraph 3. (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 advantage, 
without prejudice to paragraph 3. 
"Rental" within the meaning of 
this paragraph does not cover 
making available for the purpose 
of public performance. 
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ORIGINAL PROPOSAL AMENDED PROPOSAL 
(3) For the purposes of this 
Directive, "lending" means making 
available for use, for a limited 
period of time, and not for 
direct profit-making purposes, if 
it is made through Institutions 
which are accessible to the 
public, such as public libraries, 
research libraries, specialized 
libraries, school libraries, 
church libraries, collections of 
new media or of works of visual 
art, libraries organized or 
sponsored by public or private 
companies, and other collections 
of subject matter as set out In 
Article 2(1). (3) For the purposes of this 
Directive, "lending" means making 
available for use, for a limited 
period of time, and not for 
profit-making purposes, if it Is 
made through Institutions which 
are accessible to the public, 
such as public libraries, 
research libraries, specialized 
libraries, school libraries, 
church libraries, collections of 
new media or of works of visual 
art and other collections of 
subject matter as set out In 
Article 2 (1). "Lending" within 
the meaning of this paragraph 
does not cover making available 
for the purpose of public 
performance. 
(4) The rights referred to In 
paragraph 1 shall not be affected 
by any sale, or other act of 
distribution, of originals and 
copies of works and other subject 
matter, as set out in Article 2 
(1). (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 works and other 
subject matter, as set out In 
Article 2(1). 
- 25 -
ORIGINAL PROPOSAL AMENDED PROPOSAL 
Article 2 First Owner and Subject 
Matter of Rental and 
Lending Right. Article 2 First Owner and Subject 
Matter of Rental and 
Lending Right. 
(1) The right to authorize or 
prohibit the rental and lending 
shalI belong (1) unchanged 
- to the author In respect of the 
original and copies of his work, 
- to the performing artist In 
respect of fixations of his 
performance, 
- to the phonogram producer in 
respect of his phonograms, and 
- to the producer of the first 
fixations of cinematographic 
works and moving images in 
respect of his visual recordings, 
and visual and sound recordings. 
(2) For the purposes of this 
Directive the principal director 
of a cinematographic work shall 
be its author. Member States may 
provide for others to be its co­
authors. 
(2) A rental and lending right does 
not arise In relation to 
buildings and to works of 
applled art. (3) A rental and lending right does 
not arise In relation to 
buildings and to works of applied 
art. 
- 26 -
ORIGINAL PROPOSAL AMENDED PROPOSAL 
(3) The provisions of this Directive 
shall be without prejudice to any 
provisions of Council Directive 
(EEC)N* ... of ... on the Legal 
Protection of Computer 
Programs^1). (4) The provisions of this Directive 
shall be without prejudice to 
- Article 4 c) of Council Directive 
91/250/EEC of 14 May 1991 on the 
legal protection of computer 
programs^1). 
(5) Any contract concerning film 
production between a performing 
artist and a producer of a film, 
as set out in paragraph 1 
4th indent, must be concluded in 
writing. When the performing 
artist signs a contract 
concerning film production with 
the film producer as set out in 
paragraph 1, he shall be 
presumed, subject to contractual 
provisions to the contrary, to 
have assigned his rental and 
lending right, subject to the 
provisions of Article 3. 
Article 3 Authorization of Renta 
and Lending Article 3 Authorization of Rental 
and Lending 
If the rightholders authorize to a 
third party against payment the 
rental or lending of a sound 
recording, visual recording or 
visual and sound recording, then each 
of the rightholders set out in 
Article 2 (1) shall retain the right If the rightholders set out In 
Article 2 (1) authorize to a third 
party against payment the rental or 
lending of a sound recording, visual 
recording or visual and sound 
recording, then each of the said 
rightholders shall retain the right 
(1) (1) OJ No. L 122, 17.5.1991, P. 42 
- 27 -
ORIGINAL PROPOSAL AMENDED PROPOSAL 
to obtain an adequate part of the 
said payment, notwithstanding any 
assignment of the rental or lending 
right or granting of licences. This 
right to obtain an adequate part of 
the payment cannot be waived, but its 
administration may be assigned. to obtain an adequate part of the 
said payment, notwithstanding any 
assignment of the rental or lending 
right or granting of licenses. This 
part shall be adequately proportional 
to the Importance of the contribution 
of the rightholders concerned to the 
sound recording, visual recording or 
visual and sound recording. This 
right to obtain an adequate part of 
the payment cannot be waived, but its 
administration may, for authors and 
performing artists, be entrusted to 
collecting societies representing the 
professional categories concerned. 
Article 4 Derogation from exclusive 
lending right Article 4 Derogation from exclusive 
lending right 
Member States may, for cultural or 
other reasons, derogate from the 
copyright based exclusive lending 
right referred to in Article 1 (1) 
for one or several categories of 
objects, provided that 
at least authors obtain an 
equitable remuneration through 
administering bodies for such 
lending; and 
such derogation measures comply 
with Community law, In particular 
Article 7 of the EEC Treaty. unchanged 
- 28 -
ORIGINAL PROPOSAL AMENDED PROPOSAL 
Article 4 bis Moral Rights 
No changes, cuts or additions may be 
made to a work by the person making 
it available for rental, the rentor, 
the lender or the borrower without 
specific authorization of the author 
CHAPTER II PROTECTION IN THE FIELD 
OF RIGHTS RELATED TO COPYRIGHT CHAPTER II PROTECTION IN THE FIELD 
OF RIGHTS RELATED TO COPYRIGHT 
Art icle 5 Fixation Right Article 5 Fixation Right 
Member States shall provide for 
performing artists the right to 
authorize or prohibit the fixation of 
their performances. Likewise, they 
shall provide for broadcasting 
organizations the right to authorize 
or prohibit the fixation of their 
broadcasts. unchanged 
Article 6 Reproduction Right Article 6 Reproduction Right 
Member States shall provide the right 
to authorize or prohibit the direct 
or Indirect reproduction : (1) unchanged 
- 29 -
ORIGINAL PROPOSAL AMENDED PROPOSAL 
for performing artists, of 
fIxatIons of their 
performances, 
for phonogram producers, of 
their phonograms, 
for producers of the first 
fixations of cinematographic 
works or moving images, of 
their visual recordings, and 
visual and sound recordings, 
for broadcasting 
organizations, of fixations 
of their broadcasts. 
(2) When the performing artist signs 
a contract as set out In Article 
2 paragraph 5, he shall be 
presumed, subject to contractual 
provisions to the contrary, to 
have assigned his reproduction 
right, subject to the provisions 
of Article 3 which apply mutatis 
mutandis. 
Article 6 bis: Broadcasting and 
Communication to the 
Pub 11c 
(1) Member States shall provide for 
performing artists the right to 
authorize or prohibit the 
wireless broadcasting and the 
communication to the public of 
their performance, unless the 
performance Is itself already a 
broadcast performance or Is made 
from a f IxatIon. 
- 30 -
ORIGINAL PROPOSAL AMENDED PROPOSAL 
(2) Member States shall provide the 
right to be paid a single 
equitable remuneration to both 
performing artists and phonogram 
producers by the user, If a 
phonogram published for 
commercial purposes, or a 
reproduction of such phonogram is 
used for wireless broadcasting, 
or for any communication to the 
public. In the absence of 
agreement between the performing 
artists and the phonogram 
producers, Member States may fix 
the conditions determining how 
the payment is to be shared 
between them. 
(3) Member States shall provide for 
broadcasting organisations the 
right to authorize or prohibit 
the wireless rebroadcastIng of 
their broadcasts and the 
communication to the public of 
their television broadcasts if 
such communication is made in 
places accessible to the public 
against payment of an entrance 
fee. 
(4) The provisions of this Article 
shall be without prejudice to 
those provisions of Council 
Directive .../EEC on the 
coordination of certain rules on 
copyright and related rights 
applicable to satellite 
broadcasting and retransmission 
by cable which provide for 
- 31 -
ORIGINAL PROPOSAL AMENDED PROPOSAL 
performing artists and producers 
of phonograms the right of 
communication to the public by 
satellite, and for broadcasting 
organisations the right of 
simultaneous retransmission of 
their broadcasts by satellite. 
Article 7 Distribution Right Article 7 Distribution Right 
(1) Member States shall provide (1) Member States shall provide 
for performing artists In 
respect of fixations of their 
performances, 
for phonogram producers In 
respect of their phonograms, 
for producers of the first 
fixations of cinematographic 
works and moving Images in 
respect of their visual 
recordings, and visual and 
sound recordings, 
for broadcasting 
organizations in respect of 
fIxatIons of their 
broadcasts, for performing artists In 
respect of fixations of their 
performances, 
for phonogram producers In 
respect of their phonograms, 
for producers of the first 
fixations of cinematographic 
works and moving Images In 
respect of their visual 
recordings, and visual and 
sound recordings, 
for broadcasting 
organizations In respect of 
f ixatIons of their 
broadcasts, 
the exclusive right to make 
available, for an unlimited 
period of time, their respective 
subject matter to the publIc by 
sale or otherwise, without 
prejudice to paragraph 2. the exclusive right to make 
available, for an unlimited 
period of time, their respective 
subject matter to the public by 
sale or otherwise, without 
prejudice to paragraph 3. 
- 32 -
ORIGINAL PROPOSAL AMENDED PROPOSAL 
(2) When the performing artist signs 
a contract as set out in Article 
2 paragraph 5, he shall be 
presumed, subject to contractual 
provisions to the contrary, to 
have assigned his distribution 
right, subject to the provisions 
of Article 3 which apply mutatis 
mutandis. 
(2) If a subject matter referred to 
in paragraph 1 has been put Into 
circulation within the Community 
by the right owner or with his 
consent, then Its Import into 
another Member State may not be 
prohibited by virtue of the right 
referred to in paragraph 1. (3) unchanged 
Article 8 Limitations to Rights Article 8 Limitations to Rights 
(1) Member States may provide 
limitations to the rights 
referred to in Chapter II In 
respect of: (1) unchanged 
(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 academic 
research. 
- 33 -
ORIGINAL PROPOSAL AMENDED PROPOSAL 
(2) Irrespective of paragraph 1, any 
Member State may provide the same 
kinds of limitations with regard 
to the protection of performers, 
producers of phonograms, 
broadcasting organizations and of 
producers of the first fixations 
of cinematographic works and 
moving images, as it provides in 
connection with the protection of 
copyright In literary and 
artistic works. However, 
compulsory Iicences may be 
provided only to the extent that 
they are compatible with the Rome 
Convention (International 
Convention for the Protection of 
Performers, Producers of 
Phonograms and Broadcasting 
OrganlzatIons). (2) unchanged 
(3) Paragraph 1 a) shall be without 
prejudice to any existing or 
future legislation on 
remuneration for reproduction for 
prIvate use. (3) unchanged 
- 34 -
ORIGINAL PROPOSAL AMENDED PROPOSAL 
CHAPTER III DURATION CHAPTER III DURATION 
Article 9 
Rights Duration of Authors' Article 9 
Rights Duration of Authors' 
unchanged Until further harmonization, the 
authors' rights referred to In this 
Directive shall not expire before the 
end of the term provided by the Berne 
Convention for the Protection of 
Literary and Artistic Works; this 
shall be without prejudice to the 
particular terms of protection of 
authors' rights not explicitly dealt 
with by that Convention. 
Article 10 Duration of Related Rights Article 10 Duration of Related Rights 
Until further harmonization, the 
rights referred to in this Directive 
of performing artists, phonogram 
producers and broadcasting 
organizations shall not expire before 
the end of the respective terms 
provided by the Rome Convention. This 
shall apply mutatis mutandis to the 
rights referred to In this Directive, 
of producers of the first fixations 
of cinematographic works and moving 
images. unchanged 
- 35 -
ORIGINAL PROPOSAL 
CHAPTER IV COMMON PROVISIONS AMENDED PROPOSAL 
CHAPTER IV COMMON PROVISIONS 
Article 11 Application in Time Article 11 Application in Time 
The provisions of this Directive 
shall apply also in respect of all 
copyright works, performances, 
phonograms, broadcasts and first 
fixations of cinematographic works 
and moving images referred to In this 
Directive which are, on 1 January 
1993, still protected by the 
national legislation in the field of 
authors' rights and related rights. (1) The provisions of this Directive 
shall apply In respect of all 
copyright works, performances, 
phonograms, broadcasts and first 
fixations of cinematographic 
works and moving Images referred 
to In this Directive which are, 
on 1 January 1993, still 
protectable by the national 
legislation or this Directive in 
the field of authors' rights and 
related r ights. 
(2) Contractual rights and 
obligations arising from 
legislation applying prior to the 
date laid down in Article 12 
shall not be affected by this 
Directive for a period of three 
(3) years from its entry Into 
force. All parties concerned 
shall, however, within a period 
of three (3) years from the entry 
into force of this Directive, 
review the terms of their 
contracts with a view to bringing 
them Into line with the 
provisions of this Directive. 
Member States in which no 
exclusive right within the 
meaning of Article 1 paragraph 1 
existed before 1 January 1993 
shall provide that the 
- 36 
ORIGINAL PROPOSAL AMENDED PROPOSAL 
rlghtholders are deemed to have 
given their authorization to the 
rental or lending of an object 
set out in Article 2 paragraph 1, 
which is proven to have been made 
available to third parties for 
this purpose or to have been 
acquired before 1 January 1993. 
Article 11 bis 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 as 
such. 
Article 12 Final provisions Article 12 Final provisions 
Member States shall bring Into force 
the laws, regulations and 
administrative provisions necessary 
to comply with this Directive not 
later than 1 January 1993. unchanged 
Member States shall forthwith inform 
the Commission thereof and 
communicate to the Commission the 
provisions of national law which they 
adopt in the field covered by this 
Di rectIve. 
- 37 -
ORIGINAL PROPOSAL AMENDED PROPOSAL 
When Member States adopt these 
provisions, these shall contain a 
reference to this Directive or shall 
be accompanied by such reference at 
the time of their official 
publication. The procedure for such 
reference shall be adopted by Member 
States. 
Article 13 Article 13 
This Directive is addressed to the 
Member States. unchanged 
Done at Brussels, 
For the CounclI 
The President 
ISSN 0254-1475 
COM(92) 159 final 
DOCUMENTS 
EN 16 06 
Catalogue number: CB-CO-92-176-EN-C 
ISBN 92-77-43547-X 
Office for Official Publications of the European Communities 
L-2985 Luxembourg