Source: EURLEX
Language: en
Format: md

28. 2. 91 Official Journal of the European Communities N o C 53/35

**Proposal** **for a** **Council Directive** **on** **rental right, lending right,** **and on** **certain rights related** **to**

**copyright**

_**COM(90)**_ _**586**_ _**final**_ _**— SYN 319**_

_**(Submitted**_ _**by the**_ _**Commission**_ _**on 13**_ _**December**_ _**1990)**_

(91/C 53/04)

**THE** **COUNCIL** **OF THE** **EUROPEAN COMMUNITIES,**

Having regard to the Treaty establishing the European
Economic Community and in particular Articles 57 (2), 66
and 100a thereof,

Having regard to the proposal from the Commission,

In cooperation with the European Parliament,

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

Whereas differences exist in the legal protection provided by
the laws and practices of the Member States for copyright
works and subject matter of related rights protection as
regards rental and lending, and such differences are sources
of barriers to trade and distortions of competition which
impede the proper functioning of the internal market;

Whereas such differences in legal protection could well
become greater as Member States adopt new and different
legislation or as nationall jurisprudence interpreting such
legislation develops differently;

Whereas such differences should therefore be eliminated by
31 December 1992 in accordance with the objective of
introducing an area without internal frontiers, as set out in
Article 8A of the Treaty;

Whereas rental and lending of copyright works and the
subject matter of related rights protection is playing an
increasingly important role in particular for creators, artists
and a broad range of industries, and piracy is becoming an
increasing threat;

Whereas the adequate protection of copyright works and
subject matter of related rights protection by rental and
lending rights as well as the protection of the subject matter
of related rights protection by the fixation right,
reproduction right and distribution right can accordingly be
considered as being of fundamental importance for the
Community's industrial and cultural development;

Whereas copyright and related rights protection must adapt
to new economic developments such as new forms of
exploitation;

Whereas the creative and artistic work of authors and

performing artists necessitates an adequate income as a basis
for further creative and artistic work, and the investments
required particularly for the production of phonograms and

films are especially high and risky and the possibility for
securing that income and recouping that investment can only
effectively be guaranteed through adequate legal
protection;

Whereas without effective and harmonized protection
throughout the Member States, such creative and artistic
work as well as such investment might decrease or never be
made;

Whereas these creative, artistic and entrepreneurial activities
are, to a large extent, activities of self-employed persons, and
the pursuit of such activities must be made easier by
providing a uniform legal protection within the
Community;

Whereas, to the extent that these activities constitute
services, their provision must equally be facilitated by the
establishment in the Community of a uniform legal
framework;

Whereas protection by rental and lending rights and
protection in the field of rights related to copyright by
existing legislation, administrative practice, and court
jurisprudence does not exist at all in some Member States
and, where it exists, is not the same or has different

characteristics;

Whereas the uncoordinated development in the Community
of legal protection in these fields in the Member States could
result in the creation of new disincentives to trade to the

detriment of further industrial and cultural development and
of the completion of the internal market;

Whereas existing differences having such effects need to be
removed and new ones having a negative impact on the
functioning of the common market and the development of
trade in cultural goods and services need to be prevented
from arising;

Whereas the legislation of the Member States should be
harmonized in such a way as not to conflict with the existing
international conventions on which many Member States'
copyright and related rights laws are based;

Whereas the Community's legal framework on the rental and
lending right and on certain rights related to copyright can be
limited to establishing that Member States provide rights

N o C 5 3 / 3 6 Official Journal of the European Communities 28. 2 . 9 1

with respect t o rental and lending for certain groups of right
owners and further t o establishing the exclusive rights of
fixation, reproduction and distribution for certain groups of
right owners in the field of related rights protection;

Whereas the harmonized rental and lending rights and the
harmonized protection in the field of rights related t o
copyright should not be exercised in a way which constitutes
a disguised restriction on trade between Member States,

**HAS** **ADOPTED THIS DIRECTIVE:**

**CHAPTER** **I**

**RENTAL** **A N D** **LENDING RIGHT**

_**Article**_ _**1**_

Object of harmonization

1. In accordance with the provisions of this chapter,
Member States shall provide a right t o authorize or prohibit
the rental and lending of originals and copies of copyright
works, and other subject matter as set out in Article 2 (1).

\

2. For the purposes of this Directive, 'rental' means
making available for use, for a limited period of time and for
profit-making purposes, without prejudice to paragraph 3.

3. For the purposes of this Directive, 'lending' means
making available for use, for a limited period of time, and not
for direct profit-making purposes, if it is made through
institutions which are accessible t o 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 t o in paragraph 1 shall not be
affected by any sale, or other act of distribution, of originals
and copies of works and other subject matter, as set out in
Article 2 (1).

_**Article**_ _**2**_

First owner and subject matter of rental and lending right

1. The right t o authorize or prohibit the rental and
lending shall belong:

— t o the author in respect of the original and copies of his

work,

— t o the performing artist in respect of fixations of his
performance,

— t o the phonogram producer in respect of his phonograms,

and

— t o 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 t o
buildings and t o works of applied art.

3 . The provisions of this Directive shall be without
prejudice t o any provisions of the Council Directive on the
legal protection of computer programs.

_**Article**_ _**3**_

Authorization of rental and lending

If the rightholders authorize t o 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 t o obtain an adequate
part of the said payment, notwithstanding any assignment of
the rental or lending right or granting of licences. This right
t o 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 t o
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 E E C Treaty.

**CHAPTER** **II**

**PROTECTION** **IN THE** **FIELD** **OF** **RIGHTS RELATED** **T O**

**COPYRIGHT**

_**Article**_ _**5**_

Fixation right

Member States shall provide for performing artists the right
t o authorize or prohibit the fixation of their performances.
Likewise, they shall provide for broadcasting organizations
the right t o authorize or prohibit the fixation of their

broadcasts.

28. 2. 91 Official Journal of the European Communities N o C 53/37

_Article_ _6_

Reproduction right

Member States shall provide the right to authorize or
prohibit the direct or indirect reproduction:

— for performing artists, of fixations of their
performances,

— for phonogram producers, of their phonograms,

— for producers of the first fixations of cinematographic
works or moving images, of their visual recordings, and
visual and sound recordings,

— for broadcasting organizations, of fixations of their
broadcasts.

_Article_ _7_

Distribution right

1. Member States shall provide:

— for performing artists in respect of fixations of their
performances,

— for phonogram producers in respect of their
phonograms,

— for producers of the first fixations of cinematographic
works and moving images in respect of their visual
recordings, and visual and sound recordings,

— for broadcasting organizations in respect of fixations of

their broadcasts,

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the exclusive right to make available, for an unlimited period
of time, their respective subject matter to the public by sale or
otherwise, without prejudice to paragraph 2.

2. If a subject matter referred to in paragraph 1 has been
put into circulation within the Community by the right
owner or with his consent, then its import into another
Member State may not be prohibited by virtue of the right
referred to in paragraph 1.

_Article_ _8_

Limitations to rights

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

(a) private use;

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

current events;

(c) ephemeral fixation by a broadcasting organization by
means of its own facilities and for its own

broadcasts;

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

2. Irrespective of paragraph 1, any Member State may
provide the same kinds of limitations with regard to the
protection of performers, producers of phonograms,
broadcasting organizations and of producers of the first
fixations of cinematographic works and moving images, as it
provides in connection with the protection of copyright in
literary and artistic works. However, compulsory licences
may be provided only to the extent that they are compatible
with the Rome Convention (International Convention for the
Protection of Performers, Producers of Phonograms and
Broadcasting Organizations).

3. Paragraph 1 (a) shall be without prejudice to any
existing or future legislation on remuneration for
reproduction for private use.

**CHAPTER** **III**

**DURATION**

_Article_ _9_

Duration of authors' rights

Until further harmonization, the authors' rights referred to in
this Directive shall not expire before the end of the term
provided by the Berne Convention for the Protection of
Literary and Artistic Works; this shall be without prejudice
to the particular terms of protection of authors' rights not
explicity dealt with by that Convention.

_Article_ _10_

Duration of related rights

Until further harmonization, the rights referred to in this
Directive of performing artists, phonogram producers and
broadcasting organizations shall not expire before the end of
the respective terms provided by the Rome Convention. This
shall apply _mutatis mutandis_ to the right referred to in this.
Directive, of producers of the first fixations of
cinematographic works and moving images.

**CHAPTER** **IV**

**COMMON PROVISIONS**

_Article_ _11_

Application in time

The provisions of this Directive shall apply also in respect of
all copyright works, performances, phonograms, broadcasts

N o C 5 3 / 3 8 Official Journal of the European Communities 28. 2 . 9 1

and first fixations of cinematographic works and moving
images referred t o in this Directive which are, on 1 January
1993, still protected by the national legislation in the field of
authors' rights and related rights.

_**Article**_ _**12**_

**Final provisions**

Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive not later than 1 January 1993.

Member States shall forthwith inform the Commission

thereof and communicate t o the Commission the provisions
of national law which they adopt in the field covered by this

Directive.

When Member States adopt these provisions, these shall
contain a reference t o this Directive or shall be accompanied
by such reference at the time of their official publication. The
procedure for such reference shall be adopted by Member

States.

_**Article**_ _**13**_

This Directive is addressed t o the Member States.