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
Date: 1992-04-30
Institutions: European Commission
Subjects: EU law, copyright, heritage protection, intellectual property

COMMISSION  OF  THE EUROPEAN  COMMUNITIES 

C0M(92)  159  f i n al 

-  SYN  319 

B r u s s e l s,  30  A p r il  1992 

Amended  proposal 

f or  a 

COUNCIL  DIRECTIVE 

ON  RENTAL  R I G HT  AND  L E N D I NG  R I G HT  AND  ON  C E R T A IN 

R I G H TS  RELATED  TO  COPYRIGHT 

IN  THE  F I E LD  OF 

I N T E L L E C T U AL  PROPERTY 

( p r e s e n t ed  by  the  Commission  pursuant 
the  E E C - T r e a t y) 

of 

to  A r t i c le  1 4 9 ( 3) 

-A 

-

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 

-  2  -

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 

-  3  -

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. 

-  4  -

(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. 

-  5  -

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 . 

- 6 -

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. 

- 7 -

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. 

-  8  -

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. 

- 9 -

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. 

-  11  -

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. 

-  12 -

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. 

-  13 -

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 

- 14 -

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. 

-  15  -

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. 

-  16  -

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 

ORIGINAL PROPOSAL 

AMENDED  PROPOSAL 

-  17 -

PROPOSAL FOR A COUNCIL DIRECTIVE 

PROPOSAL  FOR A COUNCIL DIRECTIVE 

ON RENTAL RIGHT. LENDING RIGHT. AND 

ON RENTAL RIGHT AND LENDING RIGHT 

ON CERTAIN RIGHTS RELATED TO 

AND ON CERTAIN RIGHTS RELATED TO 

COPYRIGHT 

COPYRIGHT  IN THE FIELD OF 

INTELLECTUAL  PROPERTY 

THE COUNCIL OF THE EUROPEAN 

THE COUNCIL OF THE  EUROPEAN 

COMMUNITIES, 

• 

COMMUNITIES, 

Having  regard  to the Treaty 

unchanged 

establishing  the European  Economic 

Community and  in particular Articles 

57 (2), 66 and  100A thereof, 

Having  regard  to the proposal  from 

unchanged 

the Commission, 

In co-operation with the European 

unchanged 

Par I lament, 

Having  regard  to the opinion of the 

unchanged 

Economic and Social  Committee, 

Whereas differences exist  In the 

unchanged 

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; 

-  18  -

ORIGINAL  PROPOSAL 

AMENDED  PROPOSAL 

Whereas  such  differences  in  legal 

unchanged 

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 

Whereas  such  differences  should 

therefore  be eliminated  by 31 

therefore  be  eliminated  by  31 

December  1992  in accordance  with  the 

December  1992  in accordance  with  the 

objective  of  Introducing  an  area 

objective of  introducing  an  area 

without  internal  frontiers  as  set  out 

without  internal  frontiers  as  set 

in Article  8A of  the  Treaty, 

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 

unchanged 

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 

Whereas  the  adequate  protection  of 

copyright  works  and  subject  matter  of 

copyright  works  and  subject  matter 

related  rights  protection  by  rental 

of  related  rights  protection  by 

and  lending  rights  as well  as  the 

rental  and  lending  rights  as well  as 

protection  of  the  subject  matter  of 

the  protection  of  the  subject  matter 

related  rights  protection  by  the 

of  related  rights  protection  by  the 

fixation  right,  reproduction  right 

fixation  right,  reproduction  right, 

and  distribution  right  can 

distribution  right,  right  to 

accordingly  be  considered  as  being  of 

broadcast  and  communication  to  the 

fundamental  importance  for  the 

public  can  accordingly  be  considered 

Community's  industrial  and  cultural 

as being  of  fundamental  importance 

development; 

for  the  Community's  industrial  and 

cultural  development; 

-  19  -

ORIGINAL  PROPOSAL 

AMENDED  PROPOSAL 

Whereas  copyright  and  related  rights 

unchanged 

protection  must  adapt  to new  economic 

developments  such  as  new  forms of 

exploltat ion; 

Whereas  the  creative  and  artistic 

Whereas  the  creative  and  artistic 

work  of  authors  and  performing 

work  of  authors  and  performing 

artists  necessitates  an  adequate 

artists  necessitates  an  adequate 

Income  as  a  basis  for  further 

Income  as  a  basis  for  further 

creative  and  artistic  work,  and  the 

creative  and  artistic  work,  and  the 

investments  required  particularly  for 

investments  required  particularly 

the  production  of  phonograms  and 

for  the  production  of  phonograms  and 

films  are  especially  high  and  risky 

films  are  especially  high  and  risky 

and  the  possibility  for  securing  that 

and  the  possibility  for  securing 

Income  and  recouping  that  Investment 

that  Income  and  recouping  that 

can  only  effectively  be  guaranteed 

investment  can  only  effectively  be 

through  adequate  legal  protection; 

guaranteed  through  adequate  legal 

protection  of  the  first  rlghtholders 

concerned; 

Whereas  without  effective  and 

unchanged 

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 

unchanged 

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; 

ORIGINAL  PROPOSAL 

AMENDED  PROPOSAL 

-  20  -

Whereas,  to  the  extent  that  these 

Whereas,  to  the  extent  that  these 

activities  constitute  services,  their 

activities  principally  constitute 

provision  must  equally  be  facilitated 

services,  their  provision  must 

by  the  establishment  in the  Community 

equally  be  facilitated  by  the 

of  a uniform  legal  framework; 

establishment  In  the  Community  of  a 

uniform  legal  framework; 

Whereas  protection  by  rental  and 

unchanged 

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 

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; 

-  21  -

ORIGINAL  PROPOSAL 

AMENDED  PROPOSAL 

Whereas  the  legislation  of  the  Member 

unchanged 

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; 

Whereas  the Community's  legal 

Whereas  the  Community's  legal 

framework  on  the  rental  and  lending 

framework  on  the  rental  and  lending 

right  and  on  certain  rights  related 

right  and  on  certain  rights  related 

to copyright  can  be  limited  to 

to  copyright  can  be  limited  to 

establishing  that  Member  States 

establishing  that  Member  States 

provide  rights  with  respect  to  rental 

provide  rights  with  respect  to 

and  lending  for  certain  groups  of 

rental  and  lending  for  certain 

right  owners  and  further  to 

groups  of  right  owners  and  further 

establishing  the  exclusive  rights  of 

to establishing  the  exclusive  rights 

fixation,  reproduction  and 

of  fixation,  reproduction, 

distribution  for  certain  groups  of 

distribution,  broadcasting  and 

right  owners  In  the  field  of  related 

communication  to  the  public  for 

rights  protection; 

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; 

-  22  -

ORIGINAL  PROPOSAL 

AMENDED  PROPOSAL 

Whereas  the  harmonized  rental  and 

unchanged 

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; 

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: 

-  23 -

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 

(1) unchanged 

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 

(2) For  the purposes of  this 

Directive, "rental" means making 

Directive  , "rental" means making 

available for use, for a  limited 

available  for use, for a  limited 

period of time and for profit-

period of  time and  for direct or 

making purposes, without 

prejudice  to paragraph 3. 

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. 

-  24  -

ORIGINAL  PROPOSAL 

AMENDED  PROPOSAL 

(3) For  the  purposes  of  this 

(3) For  the  purposes  of  this 

Directive,  "lending" means  making 

Directive,  "lending"  means  making 

available  for  use,  for  a  limited 

available  for  use,  for  a  limited 

period  of  time,  and  not  for 

period  of  time,  and  not  for 

direct  profit-making  purposes,  if 

profit-making  purposes,  if  it  Is 

it  is made  through  Institutions 

made  through  Institutions  which 

which  are  accessible  to  the 

are  accessible  to  the  public, 

public,  such  as  public  libraries, 

such  as  public  libraries, 

research  libraries,  specialized 

research  libraries,  specialized 

libraries,  school  libraries, 

libraries,  school  libraries, 

church  libraries,  collections of 

church  libraries,  collections  of 

new media  or  of  works of  visual 

new  media  or  of  works  of  visual 

art,  libraries  organized  or 

art  and  other  collections of 

sponsored  by  public or  private 

subject  matter  as  set  out  In 

companies,  and  other  collections 

Article  2  (1). "Lending"  within 

of  subject  matter  as set  out  In 

the meaning  of  this  paragraph 

Article 2 ( 1 ). 

does  not  cover  making  available 

for  the  purpose  of  public 

performance. 

(4) The  rights  referred  to  In 

(4) The  rights  referred  to  In 

paragraph  1 shall  not  be  affected 

paragraph  1 shall  not  be 

by  any  sale, or  other  act  of 

exhausted  by  any  sale, or  other 

distribution,  of  originals  and 

act  of  distribution,  of  originals 

copies  of  works  and  other  subject 

and  copies  of  works  and  other 

matter,  as  set  out  in Article  2 

subject  matter,  as  set  out  In 

(1). 

Article 2 ( 1 ). 

ORIGINAL PROPOSAL 

AMENDED PROPOSAL 

- 25 -

Article 2 

First Owner and Subject 

Article 2  First Owner  and Subject 

Matter of Rental and 

Lending Right. 

Matter of Rental  and 

Lending Right. 

(1) The right  to authorize or 

(1) unchanged 

prohibit  the rental  and  lending 

shalI 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) 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 

(3) A rental  and  lending right does 

not arise  In relation to 

not arise  In relation to 

buildings and to works of 

buildings and  to works of applied 

applled art. 

art. 

ORIGINAL PROPOSAL 

AMENDED PROPOSAL 

-  26 -

(3) The provisions of this Directive 

(4) The provisions of  this Directive 

shall  be without prejudice to any 

shall  be without  prejudice to 

provisions of Council Directive 

- Article 4 c) of Council  Directive 

(EEC)N*  ... of  ... on the Legal 

91/250/EEC of  14 May  1991 on the 

Protection of Computer 
Programs^1). 

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 

Article 3  Authorization of Rental 

and Lending 

and Lending 

If the rightholders authorize to a 

If the rightholders set out  In 

third party against payment  the 

Article 2 (1) authorize  to a third 

rental  or  lending of a sound 

party against payment  the rental or 

recording,  visual  recording or 

lending of a sound  recording, visual 

visual  and sound  recording, then each 

recording or visual  and sound 

of the rightholders set out  in 

recording, then each of  the said 

Article 2 (1) shall  retain the right 

rightholders shall  retain  the right 

(1) 

(1) OJ No. L 122, 17.5.1991, P. 42 

ORIGINAL PROPOSAL 

AMENDED PROPOSAL 

- 27 -

to obtain an adequate part of the 

to obtain an adequate part of the 

said payment, notwithstanding any 

said payment, notwithstanding any 

assignment of  the rental or  lending 

assignment of the rental  or  lending 

right or granting of  licences. This 

right or granting of  licenses. This 

right  to obtain an adequate part of 

part shall be adequately  proportional 

the payment cannot be waived, but  its 

to the  Importance of  the contribution 

administration may be assigned. 

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 

Article 4  Derogation from exclusive 

lending right 

lending right 

Member States may, for cultural or 

unchanged 

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. 

-  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 

CHAPTER  II  PROTECTION  IN THE FIELD 

OF RIGHTS RELATED TO COPYRIGHT 

OF RIGHTS RELATED TO COPYRIGHT 

Art icle 5 

Fixation Right 

Article 5  Fixation Right 

Member  States shall provide for 

unchanged 

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. 

Article 6 

Reproduction Right 

Article 6  Reproduction Right 

Member  States shall  provide the right 

(1) unchanged 

to authorize or prohibit  the direct 

or  Indirect  reproduction : 

-  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. 

ORIGINAL PROPOSAL 

AMENDED  PROPOSAL 

-  30 -

(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 

ORIGINAL PROPOSAL 

AMENDED PROPOSAL 

-  31 -

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 

for performing  artists In 

respect of fixations of their 

respect of  fixations of their 

performances, 

performances, 

for phonogram producers In 

for phonogram producers  In 

respect of their phonograms, 

respect of  their phonograms, 

for producers of the first 

for producers of  the first 

fixations of cinematographic 

fixations of cinematographic 

works and moving  Images in 

works and moving  Images In 

respect of their visual 

respect of  their visual 

recordings, and visual  and 

recordings, and visual  and 

sound recordings, 

for broadcasting 

sound recordings, 

for broadcasting 

organizations  in respect of 

organizations  In respect of 

fIxatIons of their 

broadcasts, 

f ixatIons of their 

broadcasts, 

the exclusive  right  to make 

the exclusive  right  to make 

available, for an unlimited 

available, for an unlimited 

period of time, their  respective 

period of time, their  respective 

subject matter  to the publIc by 

subject matter  to the public by 

sale or otherwise, without 

sale or otherwise, without 

prejudice to paragraph 2. 

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 

(3) unchanged 

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 

Article 8  Limitations  to Rights 

(1) Member  States may provide 

(1) unchanged 

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. 

-  33 -

ORIGINAL  PROPOSAL 

AMENDED  PROPOSAL 

(2) Irrespective of paragraph  1, any 

(2) unchanged 

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). 

(3) Paragraph  1 a) shall  be without 

(3) unchanged 

prejudice  to any existing or 

future  legislation on 

remuneration  for  reproduction for 

prIvate use. 

-  34 -

ORIGINAL PROPOSAL 

AMENDED PROPOSAL 

CHAPTER  III 

DURATION 

CHAPTER  III DURATION 

Article 9 

Rights 

Duration of Authors' 

Article 9 

Duration of Authors' 

Rights 

Until  further  harmonization, the 

unchanged 

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 

unchanged 

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. 

-  35 -

ORIGINAL PROPOSAL 

AMENDED  PROPOSAL 

CHAPTER  IV 

COMMON PROVISIONS 

CHAPTER  IV  COMMON  PROVISIONS 

Article 11 

Application  in Time 

Article 11  Application  in Time 

The provisions of  this Directive 

(1) The provisions of  this Directive 

shall  apply also  in respect of all 

shall  apply  In respect of all 

copyright works, performances, 

copyright works, performances, 

phonograms, broadcasts and first 

phonograms, broadcasts and first 

fixations of  cinematographic works 

fixations of  cinematographic 

and moving  images referred  to  In this 

works and moving  Images referred 

Directive which are, on 1 January 

to  In this Directive which are, 

1993,  still protected by the 

on 1 January  1993,  still 

national  legislation  in the field of 

protectable by  the national 

authors' rights and related rights. 

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 

unchanged 

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 

Di rectIve. 

ORIGINAL PROPOSAL 

AMENDED PROPOSAL 

- 37 -

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 

unchanged 

Member States. 

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