Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version)
Date: 2006-12-12
Institutions: Council of the European Union, European Parliament
Subjects: codification of EU law, copyright, cultural object, free service, hiring

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Official Journal of the European Union

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DIRECTIVE 2006/115/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 12 December 2006

on rental right and lending right and on certain rights related to copyright in the field of intellectual
property

(codified version)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN UNION,

(5)

Having regard to the Treaty establishing the European Commu-
nity, and in particular Articles 47(2), 55 and 95 thereof,

Having regard to the proposal from the Commission,

The creative and artistic work of authors and performers
necessitates an adequate income as a basis for further cre-
ative and artistic work, and the investments required par-
ticularly for the production of phonograms and films are
especially high and risky. The possibility of securing that
income and recouping that investment can be effectively
guaranteed only through adequate legal protection of the
rightholders concerned.

Having regard to the opinion of the European Economic and
Social Committee,

(6)

Acting in accordance with the procedure laid down in Article 251
of the Treaty (1),

These creative, artistic and entrepreneurial activities are, to
a large extent, activities of self-employed persons. The pur-
suit of such activities should be made easier by providing
a harmonised legal protection within the Community. To
the extent that these activities principally constitute ser-
vices, their provision should equally be facilitated by a har-
monised legal framework in the Community.

Whereas:

(1)

(2)

(3)

Council Directive 92/100/EEC of 19 November 1992 on
rental right and lending right and on certain rights related
to copyright in the field of intellectual property (2) has
been substantially amended several times (3). In the inter-
ests of clarity and rationality the said Directive should be
codified.

Rental and lending of copyright works and the subject
matter of related rights protection is playing an increas-
ingly important role in particular for authors, performers
and producers of phonograms and films. Piracy is becom-
ing an increasing threat.

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, distribution
right, right to broadcast and communication to the pub-
lic can accordingly be considered as being of fundamental
importance for the economic and cultural development of
the Community.

(7)

(8)

The legislation of the Member States should be approxi-
mated in such a way as not to conflict with the interna-
tional conventions on which the copyright and related
rights laws of many Member States are based.

The legal framework of the Community on the rental right
and lending right and on certain rights related to copy-
right can be limited to establishing that Member States
provide rights with respect to rental and lending for cer-
tain groups of rightholders and further to establishing the
rights of fixation, distribution, broadcasting and commu-
nication to the public for certain groups of rightholders
in the field of related rights protection.

(9)

It is necessary to define the concepts of rental and lend-
ing for the purposes of this Directive.

(4)

Copyright and related rights protection must adapt to
new economic developments such as new forms of
exploitation.

(10)

(1) Opinion of the European Parliament delivered on 12 October 2006

(not yet published in the Official Journal).

(2) OJ L 346, 27.11.1992, p. 61. Directive as last amended by Directive
2001/29/EC of the European Parliament and of the Council (OJ L 167,
22.6.2001, p. 10).
(3) See Annex I, Part A.

It is desirable, with a view to clarity, to exclude from rental
and lending within the meaning of this Directive certain
forms of making available, as for instance making avail-
able phonograms or films for the purpose of public per-
formance or broadcasting, making available for the
purpose of exhibition, or making available for on-the-spot
reference use. Lending within the meaning of this Direc-
tive should not include making available between estab-
lishments which are accessible to the public.

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(11) Where lending by an establishment accessible to the pub-
lic gives rise to a payment the amount of which does not
go beyond what is necessary to cover the operating costs
of the establishment, there is no direct or indirect eco-
nomic or commercial advantage within the meaning of
this Directive.

(12)

(13)

(14)

(15)

It is necessary to introduce arrangements ensuring that an
unwaivable equitable remuneration is obtained by authors
and performers who must remain able to entrust the
administration of this right to collecting societies repre-
senting them.

The equitable remuneration may be paid on the basis of
one or several payments at any time on or after the con-
clusion of the contract. It should take account of the
importance of the contribution of the authors and per-
formers concerned to the phonogram or film.

It is also necessary to protect the rights at least of authors
as regards public lending by providing for specific arrange-
ments. However, any measures taken by way of deroga-
tion from the exclusive public lending right should comply
in particular with Article 12 of the Treaty.

The provisions laid down in this Directive as to rights
related to copyright should not prevent Member States
from extending to those exclusive rights the presumption
provided for in this Directive with regard to contracts con-
cerning film production concluded individually or collec-
tively by performers with a film producer. Furthermore,
those provisions should not prevent Member States from
providing for a rebuttable presumption of the authorisa-
tion of exploitation in respect of the exclusive rights of
performers provided for in the relevant provisions of this
Directive, in so far as such presumption is compatible
with the International Convention for the Protection
of Performers, Producers of Phonograms and Broadcast-
ing Organisations (hereinafter referred to as the Rome
Convention).

(16) Member States should be able to provide for more far-
reaching protection for owners of rights related to copy-
right than that required by the provisions laid down in
this Directive in respect of broadcasting and communica-
tion to the public.

(17)

The harmonised rental and lending rights and the harmo-
nised protection in the field of rights related to copyright
should not be exercised in a way which constitutes a dis-
guised restriction on trade between Member States or in a
way which is contrary to the rule of media exploitation
chronology, as recognised in the judgment handed down
in Société Cinéthèque v. FNCF (1).

(18)

This Directive should be without prejudice to the obliga-
tions of the Member States relating to the time-limits for
transposition into national law of the Directives as set out
in Part B of Annex I,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

RENTAL AND LENDING RIGHT

Article 1

Object of harmonisation

In accordance with the provisions of this Chapter, Member
1.
States shall provide, subject to Article 6, a right to authorise or
prohibit the rental and lending of originals and copies of copy-
right works, and other subject matter as set out in Article 3(1).

2.
The rights referred to in paragraph 1 shall not be exhausted
by any sale or other act of distribution of originals and copies of
copyright works and other subject matter as set out
in
Article 3(1).

Article 2

Definitions

For the purposes of this Directive the following definitions

1.
shall apply:

(a)

(b)

‘rental’ means making available for use, for a limited period
of time and for direct or indirect economic or commercial
advantage;

‘lending’ means making available for use, for a limited period
of time and not for direct or indirect economic or commer-
cial advantage, when it is made through establishments
which are accessible to the public;

(c)

‘film’ means a cinematographic or audiovisual work or mov-
ing images, whether or not accompanied by sound.

2.
The principal director of a cinematographic or audiovisual
work shall be considered as its author or one of its authors. Mem-
ber States may provide for others to be considered as its
co-authors.

Article 3

Rightholders and subject matter of rental and lending
right

The exclusive right to authorise or prohibit rental and lend-

1.
ing shall belong to the following:

(1) Joined Cases 60/84 and 61/84 [1985] ECR 2 605.

(a)

the author in respect of the original and copies of his work;

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(b)

the performer in respect of fixations of his performance;

(c)

the phonogram producer in respect of his phonograms;

(d)

the producer of the first fixation of a film in respect of the
original and copies of his film.

This Directive shall not cover rental and lending rights in

2.
relation to buildings and to works of applied art.

The rights referred to in paragraph 1 may be transferred,

3.
assigned or subject to the granting of contractual licences.

4. Without prejudice to paragraph 6, when a contract con-
cerning film production is concluded, individually or collectively,
by performers with a film producer, the performer covered by
this contract shall be presumed, subject to contractual clauses to
the contrary, to have transferred his rental right, subject to
Article 5.

5. Member States may provide for a similar presumption as
set out in paragraph 4 with respect to authors.

6. Member States may provide that the signing of a contract
concluded between a performer and a film producer concerning
the production of a film has the effect of authorising rental, pro-
vided that such contract provides for an equitable remuneration
within the meaning of Article 5. Member States may also pro-
vide that this paragraph shall apply mutatis mutandis to the rights
included in Chapter II.

Article 4

Rental of computer programs

This Directive shall be without prejudice to Article 4(c) of Coun-
cil Directive 91/250/EEC of 14 May 1991 on the legal protec-
tion of computer programs (1).

Article 5

Unwaivable right to equitable remuneration

1. Where an author or performer has transferred or assigned
his rental right concerning a phonogram or an original or copy
of a film to a phonogram or film producer, that author or per-
former shall retain the right to obtain an equitable remuneration
for the rental.

The administration of this right to obtain an equitable
3.
remuneration may be entrusted to collecting societies represent-
ing authors or performers.

4. Member States may regulate whether and to what extent
administration by collecting societies of the right to obtain an
equitable remuneration may be imposed, as well as the question
from whom this remuneration may be claimed or collected.

Article 6

Derogation from the exclusive public lending right

1. Member States may derogate from the exclusive right pro-
vided for in Article 1 in respect of public lending, provided that
at least authors obtain a remuneration for such lending. Member
States shall be free to determine this remuneration taking account
of their cultural promotion objectives.

2. Where Member States do not apply the exclusive lending
right provided for in Article 1 as regards phonograms, films
and computer programs, they shall introduce, at least for authors,
a remuneration.

3. Member States may exempt certain categories of establish-
ments from the payment of the remuneration referred to in para-
graphs 1 and 2.

CHAPTER II

RIGHTS RELATED TO COPYRIGHT

Article 7

Fixation right

1. Member States shall provide for performers the exclusive
right to authorise or prohibit the fixation of their performances.

2. Member States shall provide for broadcasting organisations
the exclusive right to authorise or prohibit the fixation of their
broadcasts, whether these broadcasts are transmitted by wire or
over the air, including by cable or satellite.

3.
A cable distributor shall not have the right provided for in
paragraph 2 where it merely retransmits by cable the broadcasts
of broadcasting organisations.

Article 8

Broadcasting and communication to the public

The right to obtain an equitable remuneration for rental

2.
cannot be waived by authors or performers.

(1) OJ L 122, 17.5.1991, p. 42. Directive as amended by Directive

93/98/EEC (OJ L 290, 24.11.1993, p. 9).

1. Member States shall provide for performers the exclusive
right to authorise or prohibit the broadcasting by wireless means
and the communication to the public of their performances,
except where the performance is itself already a broadcast per-
formance or is made from a fixation.

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2. Member States shall provide a right in order to ensure that
a single equitable remuneration is paid by the user, if a phono-
gram published for commercial purposes, or a reproduction of
such phonogram, is used for broadcasting by wireless means or
for any communication to the public, and to ensure that this
remuneration is shared between the relevant performers and pho-
nogram producers. Member States may, in the absence of agree-
ment between the performers and phonogram producers, lay
down the conditions as to the sharing of this remuneration
between them.

(b) use of short excerpts in connection with the reporting of

current events;

(c)

ephemeral fixation by a broadcasting organisation by means
of its own facilities and for its own broadcasts;

(d) use solely for the purposes of teaching or scientific research.

3. Member States shall provide for broadcasting organisations
the exclusive right to authorise or prohibit the rebroadcasting of
their broadcasts by wireless means, as well as the communica-
tion to the public of their broadcasts if such communication is
made in places accessible to the public against payment of an
entrance fee.

2.
Irrespective of paragraph 1, any Member State may pro-
vide for the same kinds of limitations with regard to the protec-
tion of performers, producers of phonograms, broadcasting
organisations and of producers of the first fixations of films, as
it provides for in connection with the protection of copyright in
literary and artistic works.

Article 9

Distribution right

However, compulsory licences may be provided for only to the
extent to which they are compatible with the Rome Convention.

1. Member States shall provide the exclusive right to make
available to the public, by sale or otherwise, the objects indi-
cated in points (a) to (d), including copies thereof, hereinafter ‘the
distribution right’:

3.
The limitations referred to in paragraphs 1 and 2 shall be
applied only in certain special cases which do not conflict with a
normal exploitation of the subject matter and do not unreason-
ably prejudice the legitimate interests of the rightholder.

(a)

for performers, in respect of fixations of their performances;

(b)

for phonogram producers, in respect of their phonograms;

(c)

for producers of the first fixations of films, in respect of the
original and copies of their films;

(d)

for broadcasting organisations, in respect of fixations of their
broadcasts as set out in Article 7(2).

2.
The distribution right shall not be exhausted within the
Community in respect of an object as referred to in paragraph 1,
except where the first sale in the Community of that object is
made by the rightholder or with his consent.

The distribution right shall be without prejudice to the spe-

3.
cific provisions of Chapter I, in particular Article 1(2).

The distribution right may be transferred, assigned or sub-

4.
ject to the granting of contractual licences.

Article 10

Limitations to rights

1. Member States may provide for limitations to the rights
referred to in this Chapter in respect of:

(a) private use;

CHAPTER III

COMMON PROVISIONS

Article 11

Application in time

1.
This Directive shall apply in respect of all copyright works,
performances, phonograms, broadcasts and first fixations of films
referred to in this Directive which were, on 1 July 1994, still pro-
tected by the legislation of the Member States in the field of copy-
right and related rights or which met the criteria for protection
under this Directive on that date.

This Directive shall apply without prejudice to any acts of

2.
exploitation performed before 1 July 1994.

3. Member States may provide that the rightholders are
deemed to have given their authorisation to the rental or lend-
ing of an object referred to in points (a) to (d) of Article 3(1)
which is proven to have been made available to third parties for
this purpose or to have been acquired before 1 July 1994.

However, in particular where such an object is a digital record-
ing, Member States may provide that rightholders shall have a
right to obtain an adequate remuneration for the rental or lend-
ing of that object.

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4. Member States need not apply the provisions of Article 2(2)
to cinematographic or audiovisual works created before
1 July 1994.

5.
This Directive shall, without prejudice to paragraph 3 and
subject to paragraph 7, not affect any contracts concluded before
19 November 1992.

6. Member States may provide, subject to the provisions of
paragraph 7, that when rightholders who acquire new rights
under the national provisions adopted in implementation of this
Directive have, before 1 July 1994, given their consent for exploi-
tation, they shall be presumed to have transferred the new exclu-
sive rights.

7.
For contracts concluded before 1 July 1994, the unwaiv-
able right to an equitable remuneration provided for in Article 5
shall apply only where authors or performers or those represent-
ing them have submitted a request to that effect before 1 Janu-
ary 1997. In the absence of agreement between rightholders
concerning the level of remuneration, Member States may fix the
level of equitable remuneration.

Article 14

Repeal

Directive 92/100/EEC is hereby repealed, without prejudice to
the obligations of the Member States relating to the time-limits
for transposition into national law of the Directives as set out in
Part B of Annex I.

References made to the repealed Directive shall be construed as
being made to this Directive and should be read in accordance
with the correlation table in Annex II.

Article 15

Entry into force

This Directive shall enter into force on the twentieth day follow-
ing that of its publication in the Official Journal of the European
Union.

Article 12

Relation between copyright and related rights

Article 16

Addressees

Protection of copyright-related rights under this Directive shall
leave intact and shall in no way affect the protection of copyright.

This Directive is addressed to the Member States.

Article 13

Communication

Done at Strasbourg, 12 December 2006.

Member States shall communicate to the Commission the main
provisions of national law adopted in the field covered by this
Directive.

For the European Parliament
The President
J. BORRELL FONTELLES

For the Council
The President
M. PEKKARINEN

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ANNEX I

PART A

Repealed Directive with its successive amendments

Council Directive 92/100/EEC

(OJ L 346, 27.11.1992, p. 61)

Council Directive 93/98/EEC

(OJ L 290, 24.11.1993, p. 9)

Article 11(2) only

Directive 2001/29/EC of the European Parliament and of the Council

Article 11(1) only

(OJ L 167, 22.6.2001, p. 10)

PART B

List of time-limits for transposition into national law

(referred to in Article 14)

Directive

Time-limit for transposition

92/100/EEC

93/98/EEC

2001/29/EC

1 July 1994

30 June 1995

21 December 2002

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ANNEX II

CORRELATION TABLE

Directive 92/100/EEC

This Directive

Article 1(1)

Article 1(2)

Article 1(3)

Article 1(4)

Article 1(1)

Article 2(1), introductory words and point (a)

Article 2(1), point (b)

Article 1(2)

Article 2(1), introductory words

Article 3(1), introductory words

Article 2(1), first indent

Article 2(1), second indent

Article 2(1), third indent

Article 2(1), fourth indent, first sentence

Article 3(1)(a)

Article 3(1)(b)

Article 3(1)(c)

Article 3(1)(d)

Article 2(1), fourth indent, second sentence

Article 2(1), point (c)

Article 2(2)

Article 2(3)

Article 2(4)

Article 2(5)

Article 2(6)

Article 2(7)

Article 3

Article 4

Article 2 (2)

Article 3(2)

Article 3(3)

Article 3(4)

Article 3(5)

Article 3(6)

Article 4

Article 5

Article 5(1) to (3)

Article 6(1) to (3)

Article 5(4)

Article 6

Article 8

—

Article 7

Article 8

Article 9(1), introductory words and final words

Article 9(1), introductory words

Article 9(1), first indent

Article 9(1), second indent

Article 9(1), third indent

Article 9(1), fourth indent

Article 9(2), (3) and (4)

Article 10(1)

Article 10(2), first sentence

Article 10(2), second sentence

Article 10(3)

Article 13(1) and (2)

Article 13(3), first sentence

Article 13(3), second sentence

Article 13(4)

Article 13(5)

Article 13(6)

Article 13(7)

Article 9(1)(a)

Article 9(1)(b)

Article 9(1)(c)

Article 9(1)(d)

Article 9(2), (3) and (4)

Article 10(1)

Article 10(2), first subparagraph

Article 10(2), second subparagraph

Article 10(3)

Article 11(1) and (2)

Article 11(3), first subparagraph

Article 11(3), second subparagraph

Article 11(4)

—

Article 11(5)

Article 11(6)

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Directive 92/100/EEC

This Directive

Article 13(8)

Article 13(9)

Article 14

Article 15(1)

Article 15(2)

—

—

Article 16

—

—

—

Article 11(7)

Article 12

—

Article 13

Article 14

Article 15

Article 16

Annex I

Annex II