No C 269/54 Official Journal of the European Communities 14.10.91 
2.5. The Committee urges the Commission and 
Council to promote ratification of the Rome Conven­
tion by as many third countries as possible, in particular 
all countries which have special relations with the Com­
munity under the Lome Convention or under associ­
ation agreements such as those being prepared with 
Hungary, Czechoslovakia and Poland. 
2.6. Although some clarification may be required on 
the legal base, the Committee supports this proposal 
for a Council Decision. 
Done at Brussels, 3 July 1991. 
1. Introduction 
1.1. This Draft Directive grants certain rights to 
authors, performing artists, record producers and film 
producers. Member States must grant rental and lend­
ing rights in respect of literary and musical works, live 
performances, films and sound recordings. This means 
that one certain owner of copyright or a neighbouring 
right in any of these works has the right to prevent 3. Further considerations 
Following agreement and implementation of this Pro­
posal, the Committee proposes that there should be a 
Community initiative to seek revision of the Berne 
and Rome Conventions (through the mechanism of the 
World Intellectual Property Organisation) with the aim 
of strengthening the protection of copyright and 'neigh­
bouring rights'. 
The Chairman 
of the Economic and Social Committee 
Francis STAEDELIN 
others from renting or lending copies of the work to 
others without his consent. 
1.2. The draft also obliges Member States to grant 
certain 'neighbouring rights'. These include the right to 
prevent the recording of live performances; to copy 
sound recordings; to prevent reproduction of and distri­
bution of films; to copy broadcasts. Opinion on the proposal for a Council Directive on rental right, lending right, and on certain 
rights related to copyright 
(91/C 269/17) 
On 5 February 1991 the Council decided to consult the Economic and Social Committee, 
under Article 100a of the Treaty establishing the European Economic Community, on the 
abovementioned proposal. 
The Section for Industry, Commerce, Crafts and Services, which was responsible for preparing 
the Committee's work on the subject, adopted its Opinion on 5 June 1991, in the light of 
the Report by Mr R. Moreland. 
At its 288th plenary session (meeting of 3 July 1991), the Economic and Social Committee 
adopted the following Opinion by a majority vote in favour, 4 against, with 2 abstentions. 
14. 10. 91 Official Journal of the European Communities No C 269/55 
2. General comments 
2.1.1. The Committee commented upon Chapter 4 
(distribution right, exhaustion and rental right) of the 
Commission's Green Paper on 'Copyright and the Chal­
lenge of Technology (*). 
The conclusion that a rental right is required in the 
case of sound and video recordings and that a 
Directive to that effect should be issued is to be 
welcomed. The question of whether such a right 
should be a right of control or merely a right to 
equitable remuneration should undoubtedly be 
answered in favour of a right of control...' 
2.1.2. Consequently the Committee welcomes the 
provisions of the Draft Directive on sound and video 
recordings; in particular the proposal to introduce a 
right of control is to be welcomed. Although Chapter 4 
of the Green Paper was directed principally to the rental 
of sound and video recordings, the Section welcomes 
the widening of the rental right proposal to all copyright 
works and the proposals related to lending and other 
rights, subject to the comments below. 
2.2. The Committee suggests that the Articles which 
will require the most attention by the Council will be 
Articles 3 and 4 and for this reason highlights them in 
the General Comments. 
2.2.1. Article 3: The right to an 
'adequate part' of rental right 
remuneration 
2.2.1.1. The Committee recognizes that this Article 
is extremely difficult to construe, especially given the 
nuances of different national methods of legislation and 
the difficulties of translating those nuances among the 
different languages of the Community. (Indeed this 
problem in highlighted by the differences between trans­
lations of 'adequate' and 'equitable' in Articles 3 and 
4, which are apparently to be understood in different 
senses, but are rendered by the same word in the Ger­
man text.) 
2.2.1.2. Consequently, the text needs to be examined 
very carefully to ensure: 
— clarity, particularly to ensure that it is understood 
in all languages, so that the practical effect is the 
same in all Member States, 
— minimal interference in the law of contract consist­
ent with the appropriate level of remuneration and 
with a fair balance between rightholders, 
(*) OJ No C 71, 20. 3. 1989. — the avoidance of a multiplicity of rightholders who­
se consent is necessary for the ordinary rental and 
lending of copies of copyright works, 
— that the owners of rental and lending rights can 
assign freely their rights in return for such remuner­
ation as can be freely negotiated. 
2.2.2. Article 4: Derogation from exclus­
ive lending right 
2.2.2.1. Only 4 Member States have a public lending 
right and there is a variety of different schemes among 
those that do. All that the Draft states on the question of 
harmonization is that authors must receive 'equitable' 
remuneration (is 'equitable' different from 'adequate'?). 
The present wording at least implies that the remuner­
ation must be the equivalent of that which could be 
freely negotiated for a lending licence if this derogation 
did not exist. If that is not the intention, so as for 
example to permit the British system, which is much 
less generous, to continue, then the drafting should be 
looked at again. 
2.2.2.2. Whilst recognizing that it will be a large step 
to ask not only for all Member States to have a public 
lending right but also to have a common basis for that 
system, the Committee must nonetheless conclude that 
if the current wording of Article 4 is retained, there will 
be no harmonization of lending right. The main reason 
for this is that derogation from exclusive lending right 
is optional. Secondly, because the Member States have 
different definitions of 'author', the derogation will 
apply to artists, producers etc. in one Member State 
but not in another. The practical impact of Article 4 
will therefore differ considerably from one Member 
State to another. 
In this connection the Committee asks the Commission 
to a) consider stipulating that Article 4 does not apply 
to sound recordings, cinematographic works, visual and 
audio-visual recordings and b) to replace in Article 4 
the words 'at least authors' by 'the rightholders referred 
to in Article 2(1)'. 
2.2.2.3. The Committee would emphasise that the 
use of a lending right should not prejudice the work of 
public libraries through the imposition of excessive 
charges. 
2.3. The Draft does not attempt to harmonize the 
law relating to the term of copyright. The Committee 
recognizes that this creates difficulties, particularly for 
those Member States with a term of protection longer 
than any term proposed by the Commission. The most 
obvious choice for literary works, fifty years post mor­
tem auctoris, would cause problems, for example, for 
No C 269/56 Official Journal of the European Communities 14. 10. 91 
Germany, currently seventy years, France, seventy years 
for musical compositions, and Spain, sixty years. Furth­
er, the Committee recognizes that the Commission has 
stated its intention to propose the harmonization of 
terms of protection in the near future. Nevertheless the 
absence of any harmonization has, so far, produced the 
most litigation and has produced, in practice, the largest 
number of barriers to intra-Gommunity trade. Conse­
quently, the absence of harmonization of the term of 
protection considerably weakens the Directive. 
2.4. The consequences of implementation of the 
lending right provisions are bound to have public 
expenditure implications for the Member States. Those 
that have no lending right, or restrict it to their own 
citizens or writers in their own language, will have 
to increase their expenditure. If the words 'equitable 
remuneration' in the derogation from Articled mean 
equivalent to a freely negotiated lending licence fee, 
then even in Member States which do have a relatively 
non-discriminatory public lending right system there 
will have to be increases in public expenditure and 
additional management costs for libraries. The Com­
mittee does not believe that this financial consideration 
should necessarily be a blockage to the passing of the 
Directive, but should be borne in mind by Member 
States in their budgeting process. 
2.5. Rights related to copyright 
Chapter II of the draft Directive has no provisions 
concerning secondary use other than rental and lending 
already dealt with in Article I. Consideration should be 
given here inter alia to rights related to the (re)broad-
casting or dissemination by other means of existing 
work. The Committee feels that these rights too fall 
under 'the fundamental ownership of neighbouring 
rights protection'. The Committee urges the Com­
mission to lose no time in submitting proposals for 
harmonization on this area too. 
3. Specific comments 
3.1. Preamble 
3.1.1. As stated in paragraph 2.1 above, the Com­
mittee supports the need for this Directive in general, 
as being in the Community's interests. Further, it would 
appear to be within the spirit of the Treaty as amended 
by the Single European Act that this should be an issue 
which involves majority voting and the co-operation 
procudure. Nevertheless, there are some question marks 
over the legal base. In the Green Paper, the Commission referred solely to Article 100a as a possible legal base. 
Yet it has added Article 57(2), which relates to self-
employed persons but appears to be concerned with 
rights of establishment, not general provisions for the 
welfare of the self-employed. 
3.1.2. The ninth recital to the Draft reads: 
'Whereas these creative, artistic and entrepreneurial 
activities are to a large extent activities of self 
employed persons.' 
Would not analysis of the industry concerned show 
that a large proportion of those activities are carried 
out by major corporations? Even artists are not necess­
arily self employed. 
3.2. Chapter I: Rental and lending right 
3.2.1. Article 1: Object of harmonization 
3.2.1.1. 1(2) and 1(3) do not cover situations such as 
inter-firm and inter-library lending, reference use or 
lending for public performance. 
3.2.1.2. In 1(2), the definition of 'rental' needs careful 
consideration so as to include 'sales' which are effec­
tively rentals. 
3.2.2. Article 2: First owner and subject 
matter of rental and lending right 
3.2.2.1. In 2(1): this should be redrafted to read 'The 
first owner of the right'. He can assign the rights. The 
owner of the rental and lending rights in any copyright 
work covered by this Article may not necessarily be the 
same person as the copyright owner. The relationship 
between copyright and the rights granted by the Direc­
tive is not clear especially in relation to film producers. 
3.2.2.2. In 2(2), 'works of applied art' is used in the 
Berne Convention but not defined and needs definition 
here. Does it apply to, for example, ordinary industrial 
articles? In any event, would it be better to state what 
works the rental and lending rights do apply to, rather 
than the reverse? 
3.2.2.3. For Article 3, see 2.2.1. 
3.2.2.4. For Article 4, see 2.2.2. 
14. 10. 91 Official Journal of the European Communities No C 269/57 
33. Chapter 11: Protection in related fields 
3.3.1. Article 5 
Article 5 could present administrative problems. On the 
one hand, 'secondary utilisation' could constitute a 
serious threat to the employment of 'live' performers. 
On the other hand, minor performers could restrict 
major broadcasts and other events unreasonably. 
Where several performers are involved in a perform­
ance, one solution would be a provision similar to that 
enshrined in Article 8 of the Rome Convention which 
gives the Member States, discretion to stipulate how 
performers are to be represented in the exercise of their 
rights. 
3.3.2. Article 6 
Does this apply to Community nationals or also to 
others? If it applies to others, then which others? On 
the basis of reciprocity? 
3.3.3. Article 7 
3.3.3.1. There is a derogation from the general right 
to prohibit distribution of copies of a work in that once 
a copy put on the market by or with the agreement of 
the right owner has been put into circulation within 
the Community the right is exhausted. This is inconsist­
ent with the Software Directive, which states that first 
sale of a copy anywhere in the Community exhausts 
the right. 
3.3.3.2. In order to combat piracy effectively, the 
Committee proposes that the following be added to 
Article 7(1) after '... to the public by sale,': 
'import, export, offer, possession for the purposes 
of trade, or otherwise'. 
Done at Brussels, 3 July 1991. 3.3.3.3. 7(2) is no more than a codification of judge­
ments of the European Court (see, for example, case 
158/86) and could be deleted. 
3.3.4. Article 8(3) 
What is the purpose of this exclusion? 
3.4. Chapter III: Duration 
3.4.1. See 2.3 above. 
3.4.2. Article 10 
It is meaningless to talk of the terms provided by 
the Rome Convention because the terms are minima. 
Member States provide different terms, some longer 
than the minima, some not. 
3.5. Chapter IV: Common provisions 
3.5.1. Article 11 
Article 11 applies to existing works, and it may be 
difficult to apply these new provisions to works in 
respect of which contracts have already been nego­
tiated. 
3.5.2. Article 12 
This is, of course, not in the list of directives required 
to be implemented by 1 January 1993. Given the time 
which will be needed to complete Community consul­
tation procedures, to obtain a Council Decision and to 
draft very complicated implementing legislation in the 
Member States, this deadline seems impracticable. 
However, the Committee stresses the need to avoid 
unnecessary delay on this proposal. 
The Chairman 
of the Economic and Social Committee 
Francois STAEDELIN