28. 2. 91 Official Journal of the European Communities No C 53/35 
Proposal for a Council Directive on rental right, lending right, and on certain rights related to 
copyright 
COM(90) 586 final — SYN 319 
(Submitted by the Commission on 13 December 1990) 
(91/C 53/04) 
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, 
Having regard to the proposal from the Commission, 
In cooperation with the European Parliament, 
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; 
Whereas such differences in legal protection could well 
become greater as Member States adopt new and different 
legislation or as nationall 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; 
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; 
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 
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 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; 
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; 
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 the uncoordinated development 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 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; 
Whereas the legislation of the Member States should be 
harmonized in such a way as not to conflict with the existing 
international conventions on which many Member States' 
copyright and related rights laws are based; 
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 
No C 53/36 Official Journal of the European Communities 28. 2. 91 
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 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, 
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 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). 
\ 
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. 
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). 
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). 
Article 2 
First owner and subject matter of rental and lending right 
1. The right to authorize or prohibit the rental and 
lending shall belong: 
— 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. A rental and lending right does not arise in relation to 
buildings and to works of applied art. 
3. The provisions of this Directive shall be without 
prejudice to any provisions of the Council Directive on the 
legal protection of computer programs. 
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 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. 
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. 
CHAPTER II 
PROTECTION IN THE FIELD OF RIGHTS RELATED TO 
COPYRIGHT 
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. 
28. 2. 91 Official Journal of the European Communities No C 53/37 
Article 6 
Reproduction right 
Member States shall provide the right to authorize or 
prohibit the direct or indirect reproduction: 
— 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. 
Article 7 
Distribution right 
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, ) 
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. 
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. 
Article 8 
Limitations to rights 
1. Member States may provide 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) 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. 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 licences 
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 Organizations). 
3. Paragraph 1 (a) shall be without prejudice to any 
existing or future legislation on remuneration for 
reproduction for private use. 
CHAPTER III 
DURATION 
Article 9 
Duration of authors' rights 
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 
explicity dealt with by that Convention. 
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 right referred to in this. 
Directive, of producers of the first fixations of 
cinematographic works and moving images. 
CHAPTER IV 
COMMON PROVISIONS 
Article 11 
Application in time 
The provisions of this Directive shall apply also in respect of 
all copyright works, performances, phonograms, broadcasts 
No C 53/38 Official Journal of the European Communities 28. 2. 91 
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. 
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. 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 
Directive. 
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 
This Directive is addressed to the Member States.