Source: EURLEX
Language: en
Format: md

## **`COMMISSION OF THE EUROPEAN COMMUNITIES`**

**C0M(92) 159 f i n a l** **-** **SYN 319**

**Brussels, 30** **April** **1992**

**Amended proposal for a**

**COUNCIL DIRECTIVE**

**ON RENTAL** **RIGHT** **AND LENDING RIGHT** **AND ON** **CERTAIN**

**RIGHTS** **RELATED TO COPYRIGHT** **IN THE** **F I E L D** **OF**

**INTELLECTUAL** **PROPERTY**

**(presented by the Commission pursuant to A r t i c l e** **149(3)**
**of the EEC-Treaty)**

### **-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

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                      - 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

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                       - 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.

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                      - 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.

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                       - 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 .

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                   - 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.

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                     - 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.

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```
                    10

Article 2 paragraph 5

The original proposal of the Commission did not contain any specific

provisions on the relations between performing artists and producers of

cinematographic works, but rather left it to Member States whether and if so

how to deal with this relation. The Commission now follows the opinion of

the European Parliament pursuant to the request of the film Industry to deal

with this relation with respect to the exclusive rental and lending right

In the framework of this Directive on Community level. This means a major

facilitation of the exploitation of films for film producers throughout the

Community on equal terms. In order to compensate the performing artist for

this potential weakening of his legal position with a minimum protection,

the presumption of assignment is rebuttable and subject to a written

contract as well as to the economic participation under Article 3. The

amended proposal extends the scope of this provision, as compared with the

wording proposed by the Parliament, for the benefit of producers beyond work

contracts to a I I contracts, and includes some minor modifications to the

formulation in order to safeguard the coherence with the other provisions of

this Directive.

Article 3

The Parliament's proposed amendment to the first sentence has been accepted

by the Commission to the extent that It constitutes a more precise

formulation of the original proposal. The other proposals of the Parliament

have been accepted subject to modifications which appear necessary for the

sake of clar i ty.

The amended proposal adopts the Idea of the Parliament to further specify In

an additional second sentence the part of the revenues which are the object

of the right under Article 3, but presents this idea in a slightly modified

and, in the view of the Commission, even more precise formulation as

compared with the Parliament's proposal. According to this formulation, the

importance of the contribution of the rightholders concerned to the sound

recording, visual recording or visual and sound recording has to be taken

Into account for the distribution of the revenues. In conformity with Its

original proposal and pursuant to the proposal of the Parliament, the

Commission presumes that the creative and artistic contributions of authors

and performing artists are of major Importance for the exploitation of the

work, as for Instance, they Influence the decision of the consumer to rent a

part icular fIIm.

```

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                      - 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.

```

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                     - 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.

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                     - 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

```

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                   - 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.

```

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                       - 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.

```

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                      - 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

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                   - 17 
ORIGINAL PROPOSAL AMENDED PROPOSAL

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```
PROPOSAL FOR A COUNCIL DIRECTIVE

ON RENTAL RIGHT. LENDING RIGHT. AND

ON CERTAIN RIGHTS RELATED TO

COPYRIGHT

THE COUNCIL OF THE EUROPEAN

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```
PROPOSAL FOR A COUNCIL DIRECTIVE

ON RENTAL RIGHT AND LENDING RIGHT

AND ON CERTAIN RIGHTS RELATED TO

COPYRIGHT IN THE FIELD OF

INTELLECTUAL PROPERTY

THE COUNCIL OF THE EUROPEAN

```

```
COMMUNITIES,

Having regard to the Treaty

establishing the European Economic

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• COMMUNITIES,

   unchanged

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Community and in particular Articles

57 (2), 66 and 100A thereof,

Having regard to the proposal from

the Commission,

In co-operation with the European

Par I lament,

Having regard to the opinion of the

Economic and Social Committee,

Whereas differences exist In the

legal protection provided by the

laws and practices of the Member

States for copyright works and

subject matter of related rights

protection as regards rental and

lending, and such differences are

sources of barriers to trade and

distortions of competition which

Impede the proper functioning of the

internal market;

```

```
unchanged

unchanged

unchanged

unchanged

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                     - 18 
ORIGINAL PROPOSAL AMENDED PROPOSAL

```

```
Whereas such differences in legal

protection could well become greater

as Member States adopt new and

different legislation or as national

Jurisprudence Interpreting such

legislation develops differently;

Whereas such differences should

therefore be eliminated by 31

December 1992 in accordance with the

objective of Introducing an area

without internal frontiers as set out

in Article 8A of the Treaty,

Whereas rental and lending of

copyright works and the subject

matter of related rights protection

Is playing an increasingly important

role In particular for creators,

artists and a broad range of

industries, and piracy is becoming an

Increasing threat;

Whereas the adequate protection of

copyright works and subject matter of

related rights protection by rental

and lending rights as well as the

protection of the subject matter of

related rights protection by the

fixation right, reproduction right

and distribution right can

accordingly be considered as being of

fundamental importance for the

Community's industrial and cultural

development;

```

```
unchanged

Whereas such differences should

therefore be eliminated by 31

December 1992 in accordance with the

objective of introducing an area

without internal frontiers as set

out In Article 8A of the Treaty so

as to establish, pursuant to Article

3(f) of the EEC Treaty, a system

ensuring that competition In the

common market is not distorted;

unchanged

Whereas the adequate protection of

copyright works and subject matter

of related rights protection by

rental and lending rights as well as

the protection of the subject matter

of related rights protection by the

fixation right, reproduction right,

distribution right, right to

broadcast and communication to the

public can accordingly be considered

as being of fundamental importance

for the Community's industrial and

cultural development;

```

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                     - 19 
ORIGINAL PROPOSAL AMENDED PROPOSAL

```

```
Whereas copyright and related rights

protection must adapt to new economic

developments such as new forms of

exploltat ion;

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;

```

```
unchanged

Whereas the creative and artistic

work of authors and performing

artists necessitates an adequate

Income as a basis for further

creative and artistic work, and the

investments required particularly

for the production of phonograms and

films are especially high and risky

and the possibility for securing

that Income and recouping that

investment can only effectively be

guaranteed through adequate legal

protection of the first rlghtholders

concerned;

unchanged

unchanged

```

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                     - 20 
ORIGINAL PROPOSAL AMENDED PROPOSAL

```

```
Whereas, to the extent that these

activities constitute services, their

provision must equally be facilitated

by the establishment in the Community

of a uniform legal framework;

Whereas protection by rental and

lending rights and protection in the

field of rights related to copyright

by existing legislation,

administrative practice, and court

jurisprudence does not exist at all

In some Member States and, where it

exists, Is not the same or has

different characteristics;

```

```
Whereas, to the extent that these

activities principally constitute

services, their provision must

equally be facilitated by the

establishment In the Community of a

uniform legal framework;

unchanged

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```
Whereas the uncoordinated development unchanged

in the Community of legal protection

in these fields in the Member States

could result in the creation of new

disincentives to trade to the

detriment of further industrial and

cultural development and of the

completion of the internal market;

Whereas existing differences having unchanged

such effects need to be removed and

new ones having a negative Impact on

the functioning of the common market

and the development of trade In

cultural goods and services need to

be prevented from arising;

```

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                     - 21 
ORIGINAL PROPOSAL AMENDED PROPOSAL

```

```
Whereas the legislation of the Member

States should be harmonized in such a

way so as not to conflict with the

existing international conventions on

which many Member States' copyright

and related rights laws are based;

Whereas the Community's legal

framework on the rental and lending

right and on certain rights related

to copyright can be limited to

establishing that Member States

provide rights with respect to rental

and lending for certain groups of

right owners and further to

establishing the exclusive rights of

fixation, reproduction and

distribution for certain groups of

right owners In the field of related

rights protection;

```

```
unchanged

Whereas the Community's legal

framework on the rental and lending

right and on certain rights related

to copyright can be limited to

establishing that Member States

provide rights with respect to

rental and lending for certain

groups of right owners and further

to establishing the exclusive rights

of fixation, reproduction,

distribution, broadcasting and

communication to the public for

certain groups of right owners in

the field of related rights

protect ion;

Whereas Member States may provide

for more far-reaching protection for

authors and owners of rights related

to copyright than that required by

Article 6 bis of this Directive;

Whereas it is necessary for Member

States to define clearly the groups

of rlghtholders covered by this

Direct Ive;

```

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                     - 22 
ORIGINAL PROPOSAL AMENDED PROPOSAL

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```
Whereas the harmonized rental and

lending rights and the harmonized

protection In the field of rights

related to copyright should not be

exercised in a way which constitutes

a disguised restriction on trade

between Member States;

```

```
unchanged

Whereas the harmonized legal

protection resulting from the

implementation of the provisions of

this Directive may create a new

situtatlon In regard to Member

States' relations with certain third

countries; whereas therefore It will

be necessary to step up negotiations

and consultations with such third

countries. In particular within the

relevant International

organizations, with a view to

securing at least reciprocal legal

protect Ion;

```

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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

  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.

```

```
(1) unchanged

(2) For the purposes of this

  Directive, "rental" means making

  available for use, for a limited

  period of time and for direct or

   indirect economic advantage,

  without prejudice to paragraph 3.

  "Rental" within the meaning of

  this paragraph does not cover

  making available for the purpose

  of public performance.

```

```
                     - 24 
ORIGINAL PROPOSAL AMENDED PROPOSAL

```

```
(3) For the purposes of this

  Directive, "lending" means making

   available for use, for a limited

   period of time, and not for

   direct profit-making purposes, if

   it is made through Institutions

  which are accessible to the

   public, such as public libraries,

   research libraries, specialized

   libraries, school libraries,

   church libraries, collections of

   new media or of works of visual

   art, libraries organized or

   sponsored by public or private

   companies, and other collections

   of subject matter as set out In

   Article 2 ( 1 ) .

(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).

```

```
(3) For the purposes of this

  Directive, "lending" means making

   available for use, for a limited

   period of time, and not for

   profit-making purposes, if it Is

  made through Institutions which

   are accessible to the public,

   such as public libraries,

   research libraries, specialized

   libraries, school libraries,

   church libraries, collections of

   new media or of works of visual

   art and other collections of

   subject matter as set out In

   Article 2 (1). "Lending" within

   the meaning of this paragraph

   does not cover making available

   for the purpose of public

   performance.

(4) The rights referred to In

   paragraph 1 shall not be

   exhausted by any sale, or other

   act of distribution, of originals

   and copies of works and other

   subject matter, as set out In

   Article 2(1).

```

```
                   - 25 
ORIGINAL PROPOSAL AMENDED PROPOSAL

```

```
Article 2 First Owner and Subject

        Matter of Rental and

        Lending Right.

(1) The right to authorize or

  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) A rental and lending right does

   not arise In relation to

   buildings and to works of

   applled art.

```

```
Article 2 First Owner and Subject

       Matter of Rental and

       Lending Right.

(1) unchanged

(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.

(3) A rental and lending right does

   not arise In relation to

   buildings and to works of applied

   art.

```

```
                   - 26 
ORIGINAL PROPOSAL AMENDED PROPOSAL

```

```
(3) The provisions of this Directive

  shall be without prejudice to any

  provisions of Council Directive

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

  Protection of Computer

  Programs^ [1] ).

Article 3 Authorization of Renta

        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

```

```
(4) The provisions of this Directive

  shall be without prejudice to

 - Article 4 c) of Council Directive

  91/250/EEC of 14 May 1991 on the

  legal protection of computer

  programs^ [1] ).

(5) Any contract concerning film

  production between a performing

  artist and a producer of a film,

  as set out in paragraph 1

  4th indent, must be concluded in

  writing. When the performing

  artist signs a contract

  concerning film production with

  the film producer as set out in

  paragraph 1, he shall be

  presumed, subject to contractual

  provisions to the contrary, to

  have assigned his rental and

   lending right, subject to the

  provisions of Article 3.

Article 3 Authorization of Rental

       and Lending

If the rightholders set out In

Article 2 (1) authorize to a third

party against payment the rental or

lending of a sound recording, visual

recording or visual and sound

recording, then each of the said

rightholders shall retain the right

```

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

```

```
                   - 27 
ORIGINAL PROPOSAL AMENDED PROPOSAL

```

```
to obtain an adequate part of the

said payment, notwithstanding any

assignment of the rental or lending

right or granting of licences. This

right to obtain an adequate part of

the payment cannot be waived, but its

administration may be assigned.

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.

```

```
to obtain an adequate part of the

said payment, notwithstanding any

assignment of the rental or lending

right or granting of licenses. This

part shall be adequately proportional

to the Importance of the contribution

of the rightholders concerned to the

sound recording, visual recording or

visual and sound recording. This

right to obtain an adequate part of

the payment cannot be waived, but its

administration may, for authors and

performing artists, be entrusted to

collecting societies representing the

professional categories concerned.

Article 4 Derogation from exclusive

       lending right

unchanged

```

```
                   - 28 
ORIGINAL PROPOSAL AMENDED PROPOSAL

                     Article 4 bis Moral Rights

                     No changes, cuts or additions may be

                     made to a work by the person making

                     it available for rental, the rentor,

                     the lender or the borrower without

                     specific authorization of the author

```

```
CHAPTER II PROTECTION IN THE FIELD

OF RIGHTS RELATED TO COPYRIGHT

```

```
CHAPTER II PROTECTION IN THE FIELD

OF RIGHTS RELATED TO COPYRIGHT

```

```
Art icle 5 Fixation Right Article 5 Fixation Right

```

```
Member States shall provide for

performing artists the right to

authorize or prohibit the fixation of

their performances. Likewise, they

shall provide for broadcasting

organizations the right to authorize

or prohibit the fixation of their

broadcasts.

```

```
unchanged

```

```
Article 6 Reproduction Right Article 6 Reproduction Right

```

```
Member States shall provide the right

to authorize or prohibit the direct

or Indirect reproduction :

```

```
(1) unchanged

```

```
                   - 29 
ORIGINAL PROPOSAL AMENDED PROPOSAL

  for performing artists, of

  fIxatIons of their

  performances,

  for phonogram producers, of

  their phonograms,

  for producers of the first

  fixations of cinematographic

  works or moving images, of

  their visual recordings, and

  visual and sound recordings,

   for broadcasting

  organizations, of fixations

  of their broadcasts.

                     (2) When the performing artist signs

                        a contract as set out In Article

                        2 paragraph 5, he shall be

                        presumed, subject to contractual

                        provisions to the contrary, to

                        have assigned his reproduction

                        right, subject to the provisions

                        of Article 3 which apply mutatis

                        mutandis.

                     Article 6 bis: Broadcasting and

                              Communication to the

                              Pub 11c

                     (1) Member States shall provide for

                        performing artists the right to

                        authorize or prohibit the

                        wireless broadcasting and the

                        communication to the public of

                        their performance, unless the

                        performance Is itself already a

                        broadcast performance or Is made

                        from a f IxatIon.

```

```
                   - 30 
ORIGINAL PROPOSAL AMENDED PROPOSAL

                     (2) Member States shall provide the

                       right to be paid a single

                       equitable remuneration to both

                       performing artists and phonogram

                       producers by the user, If a

                       phonogram published for

                       commercial purposes, or a

                       reproduction of such phonogram is

                       used for wireless broadcasting,

                       or for any communication to the

                       public. In the absence of

                       agreement between the performing

                       artists and the phonogram

                       producers, Member States may fix

                        the conditions determining how

                        the payment is to be shared

                       between them.

                     (3) Member States shall provide for

                        broadcasting organisations the

                        right to authorize or prohibit

                        the wireless rebroadcastIng of

                        their broadcasts and the

                       communication to the public of

                        their television broadcasts if

                        such communication is made in

                        places accessible to the public

                        against payment of an entrance

                        fee.

                     (4) The provisions of this Article

                        shall be without prejudice to

                        those provisions of Council

                       Directive .../EEC on the

                        coordination of certain rules on

                        copyright and related rights

                        applicable to satellite

                        broadcasting and retransmission

                        by cable which provide for

```

```
                     - 31 
  ORIGINAL PROPOSAL AMENDED PROPOSAL

                          performing artists and producers

                          of phonograms the right of

                         communication to the public by

                          satellite, and for broadcasting

                         organisations the right of

                          simultaneous retransmission of

                          their broadcasts by satellite.

Article 7 Distribution Right Article 7 Distribution Right

(1) Member States shall provide (1) Member States shall provide

```

```
  for performing artists In

  respect of fixations of their

  performances,

  for phonogram producers In

  respect of their phonograms,

  for producers of the first

  fixations of cinematographic

  works and moving Images in

  respect of their visual

  recordings, and visual and

  sound recordings,

  for broadcasting

  organizations in respect of

  fIxatIons of their

  broadcasts,

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.

```

```
  for performing artists In

  respect of fixations of their

  performances,

  for phonogram producers In

  respect of their phonograms,

  for producers of the first

  fixations of cinematographic

  works and moving Images In

  respect of their visual

  recordings, and visual and

  sound recordings,

  for broadcasting

  organizations In respect of

  f ixatIons of their

  broadcasts,

the exclusive right to make

available, for an unlimited

period of time, their respective

subject matter to the public by

sale or otherwise, without

prejudice to paragraph 3.

```

```
                   - 32 
ORIGINAL PROPOSAL AMENDED PROPOSAL

                     (2) When the performing artist signs

                        a contract as set out in Article

                        2 paragraph 5, he shall be

                        presumed, subject to contractual

                        provisions to the contrary, to

                        have assigned his distribution

                        right, subject to the provisions

                        of Article 3 which apply mutatis

                        mutandis.

```

```
(2) If a subject matter referred to

   in paragraph 1 has been put Into

  circulation within the Community

  by the right owner or with his

  consent, then Its Import into

  another Member State may not be

  prohibited by virtue of the right

  referred to in paragraph 1.

```

```
(3) unchanged

```

```
Article 8 Limitations to Rights Article 8 Limitations to Rights

```

```
(1) Member States may provide

   limitations to the rights

  referred to in Chapter II In

  respect of:

  (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.

```

```
(1) unchanged

```

```
                   - 33 
ORIGINAL PROPOSAL AMENDED PROPOSAL

```

```
(2) Irrespective of paragraph 1, any

  Member State may provide the same

  kinds of limitations with regard

  to the protection of performers,

  producers of phonograms,

  broadcasting organizations and of

  producers of the first fixations

  of cinematographic works and

  moving images, as it provides in

  connection with the protection of

  copyright In literary and

  artistic works. However,

  compulsory Iicences may be

  provided only to the extent that

  they are compatible with the Rome

  Convention (International

  Convention for the Protection of

  Performers, Producers of

  Phonograms and Broadcasting

  OrganlzatIons).

(3) Paragraph 1 a) shall be without

  prejudice to any existing or

  future legislation on

  remuneration for reproduction for

  prIvate use.

```

```
(2) unchanged

(3) unchanged

```

```
                     - 34 
  ORIGINAL PROPOSAL AMENDED PROPOSAL

CHAPTER III DURATION CHAPTER III DURATION

```

```
Article 9

Rights

```

```
Duration of Authors' Article 9

               Rights

```

```
Duration of Authors'

```

```
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

rights referred to in this Directive

of performing artists, phonogram

producers and broadcasting

organizations shall not expire before

the end of the respective terms

provided by the Rome Convention. This

shall apply mutatis mutandis to the

rights referred to In this Directive,

of producers of the first fixations

of cinematographic works and moving

images.

```

```
unchanged

```

```
  ORIGINAL PROPOSAL

CHAPTER IV COMMON PROVISIONS

```

```
- 35 
      AMENDED PROPOSAL

  CHAPTER IV COMMON PROVISIONS

```

```
Article 11 Application in Time Article 11 Application in Time

```

```
The provisions of this Directive

shall apply also in respect of all

copyright works, performances,

phonograms, broadcasts and first

fixations of cinematographic works

and moving images referred to In this

Directive which are, on 1 January

1993, still protected by the

national legislation in the field of

authors' rights and related rights.

```

```
(1) The provisions of this Directive

  shall apply In respect of all

  copyright works, performances,

  phonograms, broadcasts and first

  fixations of cinematographic

  works and moving Images referred

  to In this Directive which are,

  on 1 January 1993, still

  protectable by the national

   legislation or this Directive in

  the field of authors' rights and

  related r ights.

(2) Contractual rights and

  obligations arising from

   legislation applying prior to the

  date laid down in Article 12

  shall not be affected by this

  Directive for a period of three

   (3) years from its entry Into

   force. All parties concerned

  shall, however, within a period

  of three (3) years from the entry

   into force of this Directive,

  review the terms of their

  contracts with a view to bringing

  them Into line with the

  provisions of this Directive.

  Member States in which no

  exclusive right within the

  meaning of Article 1 paragraph 1

  existed before 1 January 1993

  shall provide that the

```

```
                     - 36

  ORIGINAL PROPOSAL AMENDED PROPOSAL

                         rlghtholders are deemed to have

                          given their authorization to the

                          rental or lending of an object

                          set out in Article 2 paragraph 1,

                         which is proven to have been made

                          available to third parties for

                          this purpose or to have been

                          acquired before 1 January 1993.

                       Article 11 bis Relation between

                                Copyright and Related

                                Rights

                       Protection of copyright related

                       rights under this Directive shall

                       leave intact and shall In no way

                       affect the protection of copyright as

                       such.

Article 12 Final provisions Article 12 Final provisions

```

```
Member States shall bring Into force

the laws, regulations and

administrative provisions necessary

to comply with this Directive not

later than 1 January 1993.

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.

```

```
unchanged

```

```
                      - 37 
  ORIGINAL PROPOSAL AMENDED PROPOSAL

When Member States adopt these

provisions, these shall contain a

reference to this Directive or shall

be accompanied by such reference at

the time of their official

publication. The procedure for such

reference shall be adopted by Member

States.

Article 13 Article 13

```

```
This Directive is addressed to the

Member States.

Done at Brussels,

          For the CounclI

          The President

```

```
unchanged

```

### **ISSN 0254-1475**

## **COM(92) 159 final**

# **DOCUMENTS**

## **E N 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**