CELEX: 51990PC0586
Language: en
Date: 1991-01-24
Title: PROPOSAL FOR A COUNCIL DIRECTIVE ON RENTAL RIGHT, LENDING RIGHT, AND ON CERTAIN RIGHTS RELATED TO COPYRIGHT

28. 2. 9 1                                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 T H E EUROPEAN COMMUNITIES,                            films are especially high and risky and the possibility for
                                                                      securing that income and recouping that investment can only
Having regard t o the Treaty establishing the European                effectively be guaranteed through adequate legal
Economic Community and in particular Articles 57 (2), 66              protection;
and 100a thereof,
                                                                      Whereas without effective and harmonized protection
Having regard t o the proposal from the Commission,
                                                                      throughout the Member States, such creative and artistic
                                                                      work as well as such investment might decrease or never be
In cooperation with the European Parliament,                          made;
Having regard t o the opinion of the Economic and Social
Committee,                                                            Whereas these creative, artistic and entrepreneurial activities
                                                                      are, t o a large extent, activities of self-employed persons, and
Whereas differences exist in the legal protection provided by         the pursuit of such activities must be made easier by
the laws and practices of the Member States for copyright             providing a uniform legal protection within the
works and subject matter of related rights protection as              Community;
regards rental and lending, and such differences are sources
of barriers t o trade and distortions of competition which
                                                                      Whereas, t o the extent that these activities constitute
impede the proper functioning of the internal market;
                                                                      services, their provision must equally be facilitated by the
                                                                      establishment in the Community of a uniform legal
Whereas such differences in legal protection could well               framework;
become greater as Member States adopt new and different
legislation or as nationall jurisprudence interpreting such
legislation develops differently;                                     Whereas protection by rental and lending rights and
                                                                      protection in the field of rights related t o copyright by
Whereas such differences should therefore be eliminated by            existing legislation, administrative practice, and court
3 1 December 1992 in accordance with the objective of                 jurisprudence does not exist at all in some Member States
introducing an area without internal frontiers, as set out in         and, where it exists, is not the same or has different
Article 8A of the Treaty;                                             characteristics;
Whereas rental and lending of copyright works and the                 Whereas the uncoordinated development in the Community
subject matter of related rights protection is playing an             of legal protection in these fields in the Member States could
increasingly important role in particular for creators, artists       result in the creation of new disincentives t o trade t o the
and a broad range of industries, and piracy is becoming an            detriment of further industrial and cultural development and
increasing threat;                                                    of the completion of the internal market;
Whereas the adequate protection of copyright works and
subject matter of related rights protection by rental and             Whereas existing differences having such effects need t o be
lending rights as well as the protection of the subject matter        removed and new ones having a negative impact o n the
of related rights protection by the fixation right,                   functioning of the common market and the development of
reproduction right and distribution right can accordingly be          trade in cultural goods and services need t o be prevented
considered as being of fundamental importance for the                 from arising;
Community's industrial and cultural development;
                                                                      Whereas the legislation of the Member States should be
Whereas copyright and related rights protection must adapt
                                                                      harmonized in such a way as not t o conflict with the existing
t o new economic developments such as new forms of
                                                                      international conventions on which many Member States'
exploitation;                                                         copyright and related rights laws are based;
Whereas the creative and artistic work of authors and
performing artists necessitates an adequate income as a basis         Whereas the Community's legal framework o n the rental and
for further creative and artistic work, and the investments           lending right and on certain rights related t o copyright can be
required particularly for the production of phonograms and            limited t o establishing that Member States provide rights
 ---pagebreak---  N o C 53/36                                     Official Journal of the European Communities                                                     28. 2. 91
 with respect t o rental a n d lending f o r certain groups of right         — t o t h e performing artist in respect of fixations of his
owners a n d f u r th e r t o establishing t h e exclusive rights of              performance,
fixation, reproduction a n d distribution f o r certain groups of
right owners in t h e field of related rights protection;                    — t o the p h o n o g r a m producer in respect of his p h o n o g r a m s ,
                                                                                   and
Whereas the harmonized rental a n d lending rights a n d the                 — t o the producer of t h e first fixations of cinematographic
harmonized protection in the field of rights related t o                           w o r k s a n d moving images in respect of' his visual
copyright should n o t b e exercised in a w a y which constitutes                  recordings, a n d visual a n d s o u n d recordings.
a disguised restriction o n t rade between M e m b e r States,
                                                                             2.       A rental a n d lending right does n o t arise in relation t o
                                                                             buildings a n d t o w o r k s of applied a r t .
                                                                             3.      T h e provisions of this Directive shall b e w i t h o u t
HAS ADOPTED THIS DIRECTIVE:
                                                                             prejudice t o any provisions of t h e Council Directive o n the
                                                                             legal protection of computer p r o g r a m s .
                               CHAPTER I                                                                      Article 3
                                                                                              Authorization of rental a n d lending
                     RENTAL A N D LENDING RIGHT
                                                                            If t h e rightholders authorize t o a third p a r t y against payment
                                                                            t h e rental o r lending of a sound recording, visual recording o r
                                 Article 1                                  visual a n d sound recording, then each of t h e rightholders set
                                                                            o u t in Article 2 ( 1 ) shall retain t h e right t o obtain a n adequate
                                                                            p a r t of t h e said payment, notwithstanding a n y assignment of
                        Object of harmonization
                                                                            t h e rental o r lending right o r granting of licences. T h i s right
                                                                            t o obtain a n adequate p a r t of t h e p a y m e n t c a n n o t b e waived,
 1.      In accordance with the provisions of this chapter,                 b u t its administration m a y b e assigned.
M e m b e r States shall provide a right t o authorize o r prohibit
t h e rental a n d lending of originals a n d copies of copyright
w o r k s , a n d other subject matter as set o u t in Article 2 (1).
     \                                                                                                        Article 4
2.       For t h e purposes of this Directive, 'rental' means                              Derogation f r o m exclusive lending right
making available f o r use, f o r a limited period of time a n d f o r
profit-making purposes, w i t h o u t prejudice t o paragraph 3 .
                                                                            M e m b e r States m a y , f o r cultural o r other reasons, derogate
                                                                            f r o m the copyright based exclusive lending right referred t o
3.       F o r t h e purposes of this Directive, 'lending' means            in Article 1 (1) f o r o n e o r several categories of objects,
making available f o r use, f o r a limited period of time, and n o t       provided t h a t :
f o r direct profit-making purposes, if it is m a d e through
institutions which are accessible t o the public, such as public            — a t least authors obtain a n equitable remuneration
libraries, research libraries, specialized libraries, school                      through administering bodies f o r such lending, a n d
libraries, church libraries, collections of n e w media o r of
                                                                            — such derogation measures comply with C o m m u n i t y l a w ,
w o r k s of visual a r t , libraries organized o r sponsored by
                                                                                  in particular Article 7 of t h e E E C T r e a t y .
public o r private companies, a n d other collections of subject
matter a s set o u t in Article 2 (1).
4.      T h e rights referred t o in paragraph 1 shall n o t be
affected b y any sale, o r other act of distribution, of originals                                          CHAPTER II
a n d copies of w o r k s a n d other subject matter, as set o u t in
Article 2 (1).                                                              PROTECTION I N T H E FIELD O F RIGHTS RELATED T O
                                                                                                            COPYRIGHT
                                 Article 2                                                                    Article 5
 First o w n e r a n d subject matter of rental a n d lending right                                       Fixation right
1.      T h e right t o authorize o r prohibit t h e rental and             M e m b e r States shall provide f o r performing artists t h e right
lending shall belong:                                                       t o authorize o r prohibit t h e fixation of their performances.
                                                                            Likewise, they shall provide f o r broadcasting organizations
— t o the a u t h o r in respect of t h e original and copies of his        t h e right t o authorize o r prohibit t h e fixation of their
       work,                                                                broadcasts.
 ---pagebreak--- 28. 2. 91                                     Official Journal of the European Communities                                N o C 53/37
                             Article 6                                   2.     Irrespective of paragraph 1, any Member State may
                                                                         provide the same kinds of limitations with regard to the
                       Reproduction right                                protection of performers, producers of phonograms,
                                                                         broadcasting organizations and of producers of the first
Member States shall provide the right to authorize or                    fixations of cinematographic works and moving images, as it
prohibit the direct or indirect reproduction:                            provides in connection with the protection of copyright in
                                                                         literary and artistic works. However, compulsory licences
— for performing           artists,   of    fixations    of  their       may be provided only to the extent that they are compatible
     performances,                                                       with the Rome Convention (International Convention for the
                                                                         Protection of Performers, Producers of Phonograms and
— for phonogram producers, of their phonograms,                          Broadcasting Organizations).
— for producers of the first fixations of cinematographic
     works or moving images, of their visual recordings, and             3.     Paragraph 1 (a) shall be without prejudice to any
     visual and sound recordings,                                        existing or future legislation on remuneration for
                                                                         reproduction for private use.
— for broadcasting organizations, of fixations of their
     broadcasts.
                             Article 7                                                            CHAPTER III
                        Distribution right                                                        DURATION
1.     Member States shall provide:
— for performing artists in respect of fixations of their                                           Article 9
     performances,
                                                                                           Duration of authors' rights
— for phonogram           producers      in   respect    of  their
     phonograms,                                                         Until further harmonization, the authors' rights referred to in
— for producers of the first fixations of cinematographic                this Directive shall not expire before the end of the term
     works and moving images in respect of their visual                  provided by the Berne Convention for the Protection of
     recordings, and visual and sound recordings,                        Literary and Artistic Works; this shall be without prejudice
                                                                         to the particular terms of protection of authors' rights not
— for broadcasting organizations in respect of fixations of              explicity dealt with by that Convention.
     their broadcasts,
          )
the exclusive right to make available, for an unlimited period
of time, their respective subject matter to the public by sale or                                  Article 10
otherwise, without prejudice to paragraph 2.
                                                                                           Duration of related rights
2.      If a subject matter referred to in paragraph 1 has been
put into circulation within the Community by the right                   Until further harmonization, the rights referred to in this
owner or with his consent, then its import into another                 Directive of performing artists, phonogram producers and
Member State may not be prohibited by virtue of the right               broadcasting organizations shall not expire before the end of
referred to in paragraph 1.                                             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
                             Article 8                                  cinematographic works and moving images.
                      Limitations to rights
1.     Member States may provide limitations to the rights
referred to in Chapter II in respect of:                                                          CHAPTER IV
(a) private use;                                                                            C O M M O N PROVISIONS
(b) use of short excerpts in connection with the reporting of
      current events;
                                                                                                   Article 11
(c) ephemeral fixation by a broadcasting organization by
      means of its own facilities and for its own
                                                                                              Application in time
      broadcasts;
(d) use solely for the purposes of teaching or academic                 The provisions of this Directive shall apply also in respect of
      research.                                                         all copyright works, performances, phonograms, broadcasts
 ---pagebreak--- N o C 53/38                                       Official Journal of t h e European Communities                                            28. 2. 91
a n d first fixations of cinematographic w o r k s and moving                  M e m b e r States shall forthwith i n f o r m t h e Commission
images referred t o in this Directive which are, o n 1 January                 thereof a n d communicate t o t h e Commission t h e provisions
1 9 9 3 , still protected b y t h e national legislation in t h e field of     of national l a w which they a d o p t in t h e field covered b y this
authors' rights a n d related rights.                                          Directive.
                                                                               W h e n M e m b e r States a d o p t these provisions, these shall
                                                                               contain a reference t o this Directive o r shall b e accompanied
                                  Article 12                                   b y such reference a t the time of their official publication. T h e
                                                                               procedure f o r such reference shall be a d o p t e d by M e m b e r
                                                                               States.
                             Final provisions
M e m b e r States shall bring into force t h e laws, regulations                                           Article 13
a n d administrative provisions necessary t o comply with this
Directive n o t later t h a n 1 January 1993.                                  T h i s Directive is addressed t o t h e M e m b e r States.