Source: EURLEX
Language: en
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No C 269/54 Official Journal of the European Communities 14.10.91

2.5. The Committee urges the Commission and
Council to promote ratification of the Rome Convention by as many third countries as possible, in particular
all countries which have special relations with the Community under the Lome Convention or under association agreements such as those being prepared with
Hungary, Czechoslovakia and Poland.

2.6. Although some clarification may be required on
the legal base, the Committee supports this proposal
for a Council Decision.

Done at Brussels, 3 July 1991.

3. Further considerations

Following agreement and implementation of this Proposal, the Committee proposes that there should be a
Community initiative to seek revision of the Berne
and Rome Conventions (through the mechanism of the
World Intellectual Property Organisation) with the aim
of strengthening the protection of copyright and 'neighbouring rights'.

_The Chairman_

_of the Economic and Social Committee_

Francis STAEDELIN

Opinion on the proposal for a Council Directive on rental right, lending right, and on certain

rights related to copyright

(91/C 269/17)

On 5 February 1991 the Council decided to consult the Economic and Social Committee,
under Article 100a of the Treaty establishing the European Economic Community, on the
abovementioned proposal.

The Section for Industry, Commerce, Crafts and Services, which was responsible for preparing
the Committee's work on the subject, adopted its Opinion on 5 June 1991, in the light of
the Report by Mr R. Moreland.

At its 288th plenary session (meeting of 3 July 1991), the Economic and Social Committee
adopted the following Opinion by a majority vote in favour, 4 against, with 2 abstentions.

1. Introduction

1.1. This Draft Directive grants certain rights to
authors, performing artists, record producers and film
producers. Member States must grant rental and lending rights in respect of literary and musical works, live
performances, films and sound recordings. This means
that one certain owner of copyright or a neighbouring
right in any of these works has the right to prevent

others from renting or lending copies of the work to
others without his consent.

1.2. The draft also obliges Member States to grant
certain 'neighbouring rights'. These include the right to
prevent the recording of live performances; to copy
sound recordings; to prevent reproduction of and distribution of films; to copy broadcasts.

14. 10. 91 Official Journal of the European Communities No C _269/55_

2. General comments

2.1.1. The Committee commented upon Chapter 4
(distribution right, exhaustion and rental right) of the
Commission's Green Paper on 'Copyright and the Challenge of Technology (*).

The conclusion that a rental right is required in the
case of sound and video recordings and that a
Directive to that effect should be issued is to be
welcomed. The question of whether such a right
should be a right of control or merely a right to
equitable remuneration should undoubtedly be
answered in favour of a right of control...'

2.1.2. Consequently the Committee welcomes the
provisions of the Draft Directive on sound and video
recordings; in particular the proposal to introduce a
right of control is to be welcomed. Although Chapter 4
of the Green Paper was directed principally to the rental
of sound and video recordings, the Section welcomes
the widening of the rental right proposal to all copyright
works and the proposals related to lending and other
rights, subject to the comments below.

2.2. The Committee suggests that the Articles which
will require the most attention by the Council will be
Articles 3 and 4 and for this reason highlights them in
the General Comments.

2.2.1. Article 3: The right to an
' a d e q u a t e p a r t ' of r e n t a l right
r e m u n e r a t i o n

2.2.1.1. The Committee recognizes that this Article
is extremely difficult to construe, especially given the
nuances of different national methods of legislation and
the difficulties of translating those nuances among the
different languages of the Community. (Indeed this
problem in highlighted by the differences between translations of 'adequate' and 'equitable' in Articles 3 and
4, which are apparently to be understood in different
senses, but are rendered by the same word in the German text.)

2.2.1.2. Consequently, the text needs to be examined
very carefully to ensure:

— clarity, particularly to ensure that it is understood
in all languages, so that the practical effect is the
same in all Member States,

— minimal interference in the law of contract consistent with the appropriate level of remuneration and
with a fair balance between rightholders,

(*) OJ No C 71, 20. 3. 1989.

— the avoidance of a multiplicity of rightholders whose consent is necessary for the ordinary rental and
lending of copies of copyright works,

— that the owners of rental and lending rights can
assign freely their rights in return for such remuneration as can be freely negotiated.

2.2.2. Article 4: D e r o g a t i o n from exclusive lending right

2.2.2.1. Only 4 Member States have a public lending
right and there is a variety of different schemes among
those that do. All that the Draft states on the question of
harmonization is that authors must receive 'equitable'
remuneration (is 'equitable' different from 'adequate'?).
The present wording at least implies that the remuneration must be the equivalent of that which could be
freely negotiated for a lending licence if this derogation
did not exist. If that is not the intention, so as for
example to permit the British system, which is much
less generous, to continue, then the drafting should be
looked at again.

2.2.2.2. Whilst recognizing that it will be a large step
to ask not only for all Member States to have a public
lending right but also to have a common basis for that
system, the Committee must nonetheless conclude that
if the current wording of Article 4 is retained, there will
be no harmonization of lending right. The main reason
for this is that derogation from exclusive lending right
is optional. Secondly, because the Member States have
different definitions of 'author', the derogation will
apply to artists, producers etc. in one Member State
but not in another. The practical impact of Article 4
will therefore differ considerably from one Member
State to another.

In this connection the Committee asks the Commission
to a) consider stipulating that Article 4 does not apply
to sound recordings, cinematographic works, visual and
audio-visual recordings and b) to replace in Article 4
the words 'at least authors' by 'the rightholders referred
to in Article 2(1)'.

2.2.2.3. The Committee would emphasise that the
use of a lending right should not prejudice the work of
public libraries through the imposition of excessive
charges.

2.3. The Draft does not attempt to harmonize the
law relating to the term of copyright. The Committee
recognizes that this creates difficulties, particularly for
those Member States with a term of protection longer
than any term proposed by the Commission. The most
obvious choice for literary works, fifty years _post mor-_
_tem auctoris,_ would cause problems, for example, for

No C 269/56 Official Journal of the European Communities 14. 10. 91

Germany, currently seventy years, France, seventy years
for musical compositions, and Spain, sixty years. Further, the Committee recognizes that the Commission has
stated its intention to propose the harmonization of
terms of protection in the near future. Nevertheless the
absence of any harmonization has, so far, produced the
most litigation and has produced, in practice, the largest
number of barriers to intra-Gommunity trade. Consequently, the absence of harmonization of the term of
protection considerably weakens the Directive.

2.4. The consequences of implementation of the
lending right provisions are bound to have public
expenditure implications for the Member States. Those
that have no lending right, or restrict it to their own
citizens or writers in their own language, will have
to increase their expenditure. If the words 'equitable
remuneration' in the derogation from Articled mean
equivalent to a freely negotiated lending licence fee,
then even in Member States which do have a relatively
non-discriminatory public lending right system there
will have to be increases in public expenditure and
additional management costs for libraries. The Committee does not believe that this financial consideration
should necessarily be a blockage to the passing of the
Directive, but should be borne in mind by Member
States in their budgeting process.

2.5. _Rights related to copyright_

Chapter II of the draft Directive has no provisions
concerning secondary use other than rental and lending
already dealt with in Article I. Consideration should be
given here _inter alia_ to rights related to the (re)broadcasting or dissemination by other means of existing
work. The Committee feels that these rights too fall
under 'the fundamental ownership of neighbouring
rights protection'. The Committee urges the Commission to lose no time in submitting proposals for
harmonization on this area too.

3. Specific comments

3.1. _Preamble_

3.1.1. As stated in paragraph 2.1 above, the Committee supports the need for this Directive in general,
as being in the Community's interests. Further, it would
appear to be within the spirit of the Treaty as amended
by the Single European Act that this should be an issue
which involves majority voting and the co-operation
procudure. Nevertheless, there are some question marks
over the legal base. In the Green Paper, the Commission

referred solely to Article 100a as a possible legal base.
Yet it has added Article 57(2), which relates to selfemployed persons but appears to be concerned with
rights of establishment, not general provisions for the
welfare of the self-employed.

3.1.2. The ninth recital to the Draft reads:

'Whereas these creative, artistic and entrepreneurial
activities are to a large extent activities of self
employed persons.'

Would not analysis of the industry concerned show
that a large proportion of those activities are carried
out by major corporations? Even artists are not necessarily self employed.

3.2. _Chapter_ _I:_ _Rental and lending right_

3.2.1. Article 1: Object of h a r m o n i z a t i o n

3.2.1.1. 1(2) and 1(3) do not cover situations such as
inter-firm and inter-library lending, reference use or
lending for public performance.

3.2.1.2. In 1(2), the definition of 'rental' needs careful
consideration so as to include 'sales' which are effectively rentals.

3.2.2. Article 2: First owner and subject
m a t t e r of rental and lending right

3.2.2.1. In 2(1): this should be redrafted to read 'The
first owner of the right'. He can assign the rights. The
owner of the rental and lending rights in any copyright
work covered by this Article may not necessarily be the
same person as the copyright owner. The relationship
between copyright and the rights granted by the Directive is not clear especially in relation to film producers.

3.2.2.2. In 2(2), 'works of applied art' is used in the
Berne Convention but not defined and needs definition
here. Does it apply to, for example, ordinary industrial
articles? In any event, would it be better to state what
works the rental and lending rights do apply to, rather
than the reverse?

3.2.2.3. For Article 3, see 2.2.1.

3.2.2.4. For Article 4, see 2.2.2.

14. 10. 91 Official Journal of the European Communities No C 269/57

_33._ _Chapter_ _11:_ _Protection in related fields_

3.3.1. Article 5

Article 5 could present administrative problems. On the
one hand, 'secondary utilisation' could constitute a
serious threat to the employment of 'live' performers.
On the other hand, minor performers could restrict
major broadcasts and other events unreasonably.
Where several performers are involved in a performance, one solution would be a provision similar to that
enshrined in Article 8 of the Rome Convention which
gives the Member States, discretion to stipulate how
performers are to be represented in the exercise of their
rights.

3.3.2. Article 6

Does this apply to Community nationals or also to
others? If it applies to others, then which others? On
the basis of reciprocity?

3.3.3. Article 7

3.3.3.1. There is a derogation from the general right
to prohibit distribution of copies of a work in that once
a copy put on the market by or with the agreement of
the right owner has been put into circulation within
the Community the right is exhausted. This is inconsistent with the Software Directive, which states that first
sale of a copy anywhere in the Community exhausts
the right.

3.3.3.2. In order to combat piracy effectively, the
Committee proposes that the following be added to
Article 7(1) after '... to the public by sale,':

'import, export, offer, possession for the purposes
of trade, or otherwise'.

Done at Brussels, 3 July 1991.

3.3.3.3. 7(2) is no more than a codification of judgements of the European Court (see, for example, case
158/86) and could be deleted.

3.3.4. Article 8(3)

What is the purpose of this exclusion?

3.4. _Chapter_ _III:_ _Duration_

3.4.1. See 2.3 above.

3.4.2. Article 10

It is meaningless to talk of the terms provided by
the Rome Convention because the terms are minima.
Member States provide different terms, some longer
than the minima, some not.

3.5. _Chapter_ IV: _Common provisions_

3.5.1. Article 11

Article 11 applies to existing works, and it may be
difficult to apply these new provisions to works in
respect of which contracts have already been negotiated.

3.5.2. Article 12

This is, of course, not in the list of directives required
to be implemented by 1 January 1993. Given the time
which will be needed to complete Community consultation procedures, to obtain a Council Decision and to
draft very complicated implementing legislation in the
Member States, this deadline seems impracticable.
However, the Committee stresses the need to avoid
unnecessary delay on this proposal.

_The Chairman_

_of the Economic and Social Committee_

Francois STAEDELIN