Source: EURLEX
Language: en
Format: md

1992L0100 — EN — 24.11.1993 — 001.001 — 1

**This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents**

**►B** **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**

(OJ L 346, 27.11.1992, p. 61)

Amended by:

Official Journal

No page date

**►M1** Council Directive 93/98/EEC of 29 October 1993 L 290 9 24.11.1993

**▼B**

1992L0100 — EN — 24.11.1993 — 001.001 — 2

**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**

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 ( [1] ),

In cooperation with the European Parliament ( [2] ),

Having regard to the opinion of the Economic and Social Committee ( [3] ),

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; whereas
such differences are sources of barriers to trade and distortions of
competition which impede the achievement and 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 national
case-law interpreting such legislation develops differently;

Whereas such differences should therefore be eliminated in accordance
with the objective of introducing an area without internal frontiers as set
out in Article 8a of the Treaty so as to institute, pursuant to Article 3 (f)
of the Treaty, a system ensuring that competition in the common market
is not distorted;

Whereas rental and lending of copyright works and the subject matter of
related rights protection is playing an increasingly important role in
particular for authors, performers and producers of phonograms and
films; whereas 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, distribution right, right to broadcast
and communication to the public can accordingly be considered as
being of fundamental importance for the Community’s economic 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 performers 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; whereas the possibility for securing that income and recouping that investment can only
effectively be guaranteed through adequate legal protection of the rightholders concerned;

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

( [1] ) OJ No C 53, 28. 2. 1991, p. 35 and
OJ No C 128, 20. 5. 1992, p. 8.
( [2] ) OJ No C 67, 16. 3. 1992, p. 92 and Decision of 28 October 1992 (not
yet published in the Official Journal).
( [3] ) OJ No C 269, 14. 10. 1991, p. 54.

1992L0100 — EN — 24.11.1993 — 001.001 — 3

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

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

Whereas the Community’s legal framework on the rental right 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 rightholders and further to establishing the
rights of fixation, reproduction, distribution, broadcasting and communication to the public for certain groups of rightholders in the field of
related rights protection;

Whereas it is necessary to define the concepts of rental and lending for
the purposes of this Directive;

Whereas 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 available phonograms or films
(cinematographic or audiovisual works or moving images, whether or
not accompanied by sound) for the purpose of public performance or
broadcasting, making available for the purpose of exhibition, or making
available for on-the-spot reference use; whereas lending within the
meaning of this Directive does not include making available between
establishments which are accessible to the public;

Whereas, where lending by an establishment accessible to the public
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 economic or commercial advantage within the
meaning of this Directive;

Whereas it is necessary to introduce arrangements ensuring that an
unwaivable equitable remuneration is obtained by authors and performers who must retain the possibility to entrust the administration of this
right to collecting societies representing them;

Whereas the equitable remuneration may be paid on the basis of one or
several payments an any time on or after the conclusion of the contract;

Whereas the equitable remuneration must take account of the importance of the contribution of the authors and performers concerned to the
phonogram or film;

Whereas it is also necessary to protect the rights at least of authors as
regards public lending by providing for specific arrangements; whereas,
however, any measures based on Article 5 of this Directive have to
comply with Community law, in particular with Article 7 of the Treaty;

Whereas the provisions of Chapter II do not prevent Member States
from extending the presumption set out in Article 2 (5) to the exclusive
rights included in that chapter; whereas furthermore the provisions of
Chapter II do not prevent Member States from providing for a rebuttable presumption of the authorization of exploitation in respect of the
exclusive rights of performers provided for in those articles, in so far as
such presumption is compatible with the International Convention for
the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (hereinafter referred to as the Rome Convention);

Whereas Member States may provide for more farreaching protection
for owners of rights related to copyright than that required by Article 8
of this Directive;

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 or in a way which is contrary to the rule of

**▼B**

1992L0100 — EN — 24.11.1993 — 001.001 — 4

media exploitation chronology, as recognized in the Judgment handed
down in Société Cinéthèque v. FNCF ( [1] ),

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I

**RENTAL AND LENDING RIGHT**

_Article 1_

**Object of harmonization**

1. In accordance with the provisions of this Chapter, Member States
shall provide, subject to Article 5, 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 direct or indirect economic
or commercial advantage.

3. For the purposes of this Directive, ‘lending' means making available for use, for a limited period of time and not for direct or indirect
economic or commercial advantage, when it is made through establishments which are accessible to the public.

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 copyright
works and other subject matter as set out in Article 2 (1).

_Article 2_

**Rightholders and subject matter of rental and lending right**

1. The exclusive right to authorize or prohibit rental and lending
shall belong:
— to the author in respect of the original and copies of his work,
— to the performer in respect of fixations of his performance,
— to the phonogram producer in respect of his phonograms, and
— to the producer of the first fixation of a film in respect of the
original and copies of his film. For the purposes of this Directive,
the term ‘film' shall designate a cinematographic or audiovisual
work or moving images, whether or not accompanied by sound.

2. For the purposes of this Directive the principal director of a
cinematographic or audiovisual work shall be considered as its author or
one of its authors. Member States may provide for others to be considered as its co-authors.

3. This Directive does not cover rental and lending rights in relation
to buildings and to works of applied art.

4. The rights referred to in paragraph 1 may be transferred, assigned
or subject to the granting of contractual licences.

5. Without prejudice to paragraph 7, when a contract concerning 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 4.

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

7. 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 authorizing rental, provided that
such contract provides for an equitable remuneration within the

( [1] ) Cases 60/84 and 61/84, ECR 1985, p. 2605.

**▼B**

1992L0100 — EN — 24.11.1993 — 001.001 — 5

meaning of Article 4. Member States may also provide that this paragraph shall apply _mutatis mutandis_ to the rights included in Chapter II.

_Article 3_

**Rental of computer programs**

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] ).

_Article 4_

**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 performer shall retain the
right to obtain an equitable remuneration for the rental.

2. The right to obtain an equitable remuneration for rental cannot be
waived by authors or performers.

3. The administration of this right to obtain an equitable remuneration may be entrusted to collecting societies representing 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 5_

**Derogation from the exclusive public lending right**

1. Member States may derogate from the exclusive right provided
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. When 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 establishments
from the payment of the remuneration referred to in paragraphs 1 and 2.

4. The Commission, in cooperation with the Member States, shall
draw up before 1 July 1997 a report on public lending in the
Community. It shall forward this report to the European Parliament and
to the Council.

CHAPTER II

**RIGHTS RELATED TO COPYRIGHT**

_Article 6_

**Fixation right**

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

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

( [1] ) OJ No L 122, 17. 5. 1991, p. 42.

1992L0100 — EN — 24.11.1993 — 001.001 — 6

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

_Article 7_

**Reproduction right**

1. Member States shall provide the exclusive right to authorize or
prohibit the direct or indirect reproduction:
— for performers, of fixations of their performances,
— for phonogram producers, of their phonograms,
— for producers of the first fixations of films, in respect of the original
and copies of their films, and
— for broadcasting organizations, of fixations of their broadcasts, as
set out in Article 6 (2).

2. The reproduction right referred to in paragraph 1 may be transferred, assigned or subject to the granting of contractual licences.

_Article 8_

**Broadcasting and communication to the public**

1. Member States shall provide for performers the exclusive right to
authorize 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 performance or is made from a
fixation.

2. Member States shall provide a right in order to ensure that a single
equitable remuneration is paid by the user, if a phonogram 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 phonogram producers. Member States may, in the
absence of agreement between the performers and phonogram producers, lay down the conditions as to the sharing of this remuneration
between them.

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

_Article 9_

**Distribution right**

1. Member States shall provide
— for performers, in respect of fixations of their performances,
— for phonogram producers, in respect of their phonograms,
— for producers of the first fixations of films, in respect of the original
and copies of their films,
— for broadcasting organizations, in respect of fixations of their broadcast as set out in Article 6 (2),

the exclusive right to make available these objects, including copies
thereof, to the public by sale or otherwise, hereafter referred to as the
‘distribution right'.

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.

3. The distribution right shall be without prejudice to the specific
provisions of Chapter I, in particular Article 1 (4).

4. The distribution right may be transferred, assigned or subject to
the granting of contractual licences.

1992L0100 — EN — 24.11.1993 — 001.001 — 7

**▼B**

_Article 10_

**Limitations to rights**

1. Member States may provide for 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 scientific research.

2. Irrespective of paragraph 1, any Member State may provide for
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 films, as it provides for in connection
with the protection of copyright in literary and artistic works. However,
compulsory licences may be provided for only to the extent to which
they are compatible with the Rome Convention.

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

CHAPTER III

**DURATION**

**▼M1**

**▼B**

CHAPTER IV

**COMMON PROVISIONS**

_Article 13_

**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 are, on 1 July 1994, still protected by
the legislation of the Member States in the field of copyright and related
rights or meet the criteria for protection under the provisions of this
Directive on that date.

2. This Directive shall apply without prejudice to any acts of exploitation performed before 1 July 1994.

3. Member States may provide that the rightholders are deemed to
have given their authorization to the rental or lending of an object
referred to in Article 2 (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 recording,
Member States may provide that rightholders shall have a right to
obtain an adequate remuneration for the rental or lending of that object.

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

5. Member States may determine the date as from which the Article
2 (2) shall apply, provided that that date is no later than 1 July 1997.

6. This Directive shall, without prejudice to paragraph 3 and subject
to paragraphs 8 and 9, not affect any contracts concluded before the
date of its adoption.

7. Member States may provide, subject to the provisions of paragraphs 8 and 9, 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 exploitation, they shall be
presumed to have transferred the new exclusive rights.

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**▼B**
8. Member States may determine the date as from which the unwaivable right to an equitable remuneration referred to in Article 4 exists,
provided that that date is no later than 1 July 1997.

9. For contracts concluded before 1 July 1994, the unwaivable right
to an equitable remuneration provided for in Article 4 shall apply only
where authors or performers or those representing them have submitted
a request to that effect before 1 January 1997. In the absence of
agreement between rightholders concerning the level of remuneration,
Member States may fix the level of equitable remuneration.

_Article 14_

**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.

_Article 15_

**Final provisions**

1. Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive not
later than 1 July 1994. They shall forthwith inform the Commission
thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference at the
time of their official publication. The methods of making such a reference shall be laid down by the Member States.

2. Member States shall communicate to the Commission the main
provisions of domestic law which they adopt in the field covered by this
Directive.

_Article 16_

This Directive is addressed to the Member States.