CELEX: 51992PC0159
Language: en
Date: 1992-04-30
Title: Amended proposal for a COUNCIL DIRECTIVE ON RENTAL RIGHT AND LENDING RIGHT AND ON CERTAIN RIGHTS RELATED TO COPYRIGHT IN THE FIELD OF INTELLECTUAL PROPERTY

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                          C0M(92)        159 f i n a l   - SYN 319
                                                          B r u s s e l s , 30 A p r i l   1992
                                Amended proposal          for a
                                     COUNCIL DIRECTIVE
     ON RENTAL R I G H T AND L E N D I N G R I G H T AND ON C E R T A I N
           R I G H T S RELATED TO COPYRIGHT I N THE F I E L D OF
                               I N T E L L E C T U A L PROPERTY
      ( p r e s e n t e d by the Commission pursuant              to A r t i c l e   149(3)
                                    of the E E C - T r e a t y )
 ---pagebreak---                                    -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
 ---pagebreak---                                    - 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
 ---pagebreak---                                       - 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.
 ---pagebreak---                                     - 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.
 ---pagebreak---                                        - 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 .
 ---pagebreak---                                      - 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.
 ---pagebreak---                                       - 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.
 ---pagebreak---                                      - 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.
 ---pagebreak---                                       - 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.
 ---pagebreak---                                        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.
 ---pagebreak---                                     - 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.
 ---pagebreak---                                     - 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.
 ---pagebreak---                                    - 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
 ---pagebreak---                                    - 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.
 ---pagebreak---                                    - 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.
 ---pagebreak---                                     - 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
 ---pagebreak---                                         - 17 -
     ORIGINAL PROPOSAL                             AMENDED PROPOSAL
PROPOSAL FOR A COUNCIL DIRECTIVE           PROPOSAL FOR A COUNCIL DIRECTIVE
ON RENTAL RIGHT. LENDING RIGHT. AND        ON RENTAL RIGHT AND LENDING RIGHT
ON CERTAIN RIGHTS RELATED TO               AND ON CERTAIN RIGHTS RELATED TO
COPYRIGHT                                  COPYRIGHT IN THE FIELD OF
                                           INTELLECTUAL PROPERTY
THE COUNCIL OF THE EUROPEAN                THE COUNCIL OF THE EUROPEAN
COMMUNITIES,                          •    COMMUNITIES,
Having regard to the Treaty                unchanged
establishing the European Economic
Community and in particular Articles
57 (2), 66 and 100A thereof,
Having regard to the proposal from         unchanged
the Commission,
In co-operation with the European          unchanged
Par I lament,
Having regard to the opinion of the        unchanged
Economic and Social Committee,
Whereas differences exist In the           unchanged
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;
 ---pagebreak---                                        - 18 -
     ORIGINAL PROPOSAL                             AMENDED PROPOSAL
Whereas such differences in legal         unchanged
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           Whereas such differences should
therefore be eliminated by 31             therefore be eliminated by 31
December 1992 in accordance with the      December 1992 in accordance with the
objective of Introducing an area          objective of introducing an area
without   internal frontiers as set out   without   internal frontiers as set
 in Article 8A of the Treaty,             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;
Whereas rental and lending of             unchanged
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        Whereas the adequate protection of
copyright works and subject matter of     copyright works and subject matter
related rights protection by rental       of related rights protection by
and lending rights as well as the         rental and lending rights as well as
protection of the subject matter of       the protection of the subject matter
related rights protection by the          of related rights protection by the
fixation right, reproduction right        fixation right, reproduction right,
and distribution right can                distribution right, right to
accordingly be considered as being of     broadcast and communication to the
fundamental   importance for the          public can accordingly be considered
Community's   industrial and cultural     as being of fundamental     importance
development;                              for the Community's     industrial and
                                          cultural   development;
 ---pagebreak---                                        - 19 -
     ORIGINAL PROPOSAL                             AMENDED PROPOSAL
Whereas copyright and related rights      unchanged
protection must adapt to new economic
developments such as new forms of
exploltat ion;
Whereas the creative and artistic         Whereas the creative and artistic
work of authors and performing            work of authors and performing
artists necessitates an adequate          artists necessitates an adequate
 Income as a basis for further            Income as a basis for further
creative and artistic work, and the       creative and artistic work, and the
 investments required particularly for    investments required particularly
the production of phonograms and          for the production of phonograms and
films are especially high and risky       films are especially high and risky
and the possibility for securing that     and the possibility for securing
 Income and recouping that  Investment    that  Income and recouping that
can only effectively be guaranteed         investment can only effectively be
through adequate legal protection;        guaranteed through adequate  legal
                                          protection of the first rlghtholders
                                          concerned;
Whereas without effective and             unchanged
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      unchanged
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;
 ---pagebreak---                                         - 20 -
     ORIGINAL PROPOSAL                             AMENDED PROPOSAL
Whereas, to the extent that these          Whereas, to the extent that these
activities constitute services, their      activities principally constitute
provision must equally be facilitated      services, their provision must
by the establishment   in the Community    equally be facilitated by the
of a uniform   legal framework;            establishment  In the Community of a
                                           uniform  legal framework;
Whereas protection by rental and           unchanged
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      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;
 ---pagebreak---                                        - 21 -
    ORIGINAL PROPOSAL                              AMENDED PROPOSAL
Whereas the legislation of the Member     unchanged
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             Whereas the Community's   legal
framework on the rental and  lending      framework on the rental and    lending
right and on certain rights related       right and on certain rights related
to copyright can be limited to            to copyright can be limited to
establishing that Member States           establishing that Member   States
provide rights with respect to rental     provide rights with respect to
and lending for certain groups of         rental and   lending for certain
right owners and further to               groups of right owners and further
establishing the exclusive rights of      to establishing the exclusive rights
fixation, reproduction and                of fixation, reproduction,
distribution for certain groups of        distribution, broadcasting and
right owners In the field of related      communication to the public     for
rights protection;                        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;
 ---pagebreak---                                       - 22 -
    ORIGINAL PROPOSAL                             AMENDED PROPOSAL
Whereas the harmonized rental and        unchanged
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;
                                         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;
HAS ADOPTED THIS DIRECTIVE:
                                         HAS ADOPTED THIS DIRECTIVE:
 ---pagebreak---                                       - 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    (1) unchanged
    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             (2) For the purposes of this
    Directive, "rental" means making         Directive , "rental" means making
    available for use, for a limited         available for use, for a limited
    period of time and for profit-           period of time and for direct or
    making purposes, without                  indirect economic advantage,
    prejudice to paragraph 3.                without prejudice to paragraph 3.
                                              "Rental" within the meaning of
                                              this paragraph does not cover
                                             making available for the purpose
                                             of public performance.
 ---pagebreak---                                       - 24 -
    ORIGINAL PROPOSAL                            AMENDED PROPOSAL
(3) For the purposes of this             (3) For the purposes of this
    Directive, "lending" means making        Directive, "lending" means making
    available for use, for a limited         available for use, for a limited
    period of time, and not for              period of time, and not for
    direct profit-making purposes, if        profit-making purposes, if it Is
    it is made through  Institutions         made through      Institutions which
    which are accessible to the              are accessible to the public,
    public, such as public libraries,        such as public      libraries,
    research  libraries, specialized         research  libraries, specialized
    libraries, school  libraries,            libraries, school      libraries,
    church  libraries, collections of        church  libraries, collections of
    new media or of works of visual          new media or of works of visual
    art, libraries organized or              art and other collections of
    sponsored by public or private           subject matter as set out In
    companies, and other collections         Article 2 (1). "Lending" within
    of subject matter as set out In          the meaning of this paragraph
    Article 2 ( 1 ) .                        does not cover making available
                                             for the purpose of public
                                             performance.
(4) The rights referred to In            (4) The rights referred to In
    paragraph 1 shall not be affected        paragraph 1 shall not be
    by any sale, or other act of             exhausted by any sale, or other
    distribution, of originals and           act of distribution, of originals
    copies of works and other subject        and copies of works and other
    matter, as set out  in Article 2         subject matter, as set out In
    (1).                                     Article 2 ( 1 ) .
 ---pagebreak---                                       - 25 -
    ORIGINAL PROPOSAL                            AMENDED PROPOSAL
Article 2     First Owner and Subject    Article 2   First Owner and Subject
              Matter of Rental and                   Matter of Rental and
              Lending Right.                         Lending Right.
(1) The right to authorize or            (1) unchanged
    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) 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.
 (2) A rental and lending right does     (3) A rental and lending right does
     not arise In relation to                not arise In relation to
     buildings and to works of               buildings and to works of applied
     applled art.                            art.
 ---pagebreak---                                       - 26 -
    ORIGINAL PROPOSAL                             AMENDED PROPOSAL
(3) The provisions of this Directive     (4) The provisions of this Directive
     shall be without prejudice to any        shall be without prejudice to
     provisions of Council Directive        - Article 4 c) of Council Directive
     (EEC)N* ... of ... on the Legal          91/250/EEC of 14 May 1991 on the
     Protection of Computer                   legal protection of computer
     Programs^1).                             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 Renta    Article 3     Authorization of Rental
               and Lending                             and Lending
 If the rightholders authorize to a       If the rightholders set out In
third party against payment the          Article 2 (1) authorize to a third
rental or lending of a sound             party against payment the rental or
recording,   visual recording or          lending of a sound recording, visual
visual and sound recording, then each     recording or visual and sound
of the rightholders set out in            recording, then each of the said
Article 2 (1) shall retain the right      rightholders shall retain the right
 (1)                                      (1) OJ No. L 122, 17.5.1991, P. 42
 ---pagebreak---                                       - 27 -
    ORIGINAL PROPOSAL                            AMENDED PROPOSAL
to obtain an adequate part of the        to obtain an adequate part of the
said payment, notwithstanding any        said payment, notwithstanding any
assignment of the rental or lending      assignment of the rental or lending
right or granting of licences. This      right or granting of licenses. This
right to obtain an adequate part of      part shall be adequately proportional
the payment cannot be waived, but its    to the Importance of the contribution
administration may be assigned.          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     Article 4  Derogation from exclusive
            lending right                            lending right
Member States may, for cultural or       unchanged
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.
 ---pagebreak---                                      - 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   CHAPTER II  PROTECTION IN THE FIELD
OF RIGHTS RELATED TO COPYRIGHT          OF RIGHTS RELATED TO COPYRIGHT
Art icle 5    Fixation Right            Article 5    Fixation Right
Member States shall provide for         unchanged
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.
Article 6     Reproduction Right        Article 6   Reproduction Right
Member States shall provide the right   (1) unchanged
to authorize or prohibit the direct
or Indirect reproduction :
 ---pagebreak---                                  - 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.
 ---pagebreak---                   - 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
 ---pagebreak---                                      - 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                for performing artists In
        respect of fixations of their            respect of fixations of their
        performances,                            performances,
        for phonogram producers In               for phonogram producers In
        respect of their phonograms,             respect of their phonograms,
        for producers of the first               for producers of the first
        fixations of cinematographic             fixations of cinematographic
        works and moving Images in               works and moving Images In
        respect of their visual                  respect of their visual
        recordings, and visual and               recordings, and visual and
        sound recordings,                        sound recordings,
        for broadcasting                         for broadcasting
        organizations in respect of              organizations In respect of
         fIxatIons of their                       f ixatIons of their
        broadcasts,                              broadcasts,
    the exclusive right to make              the exclusive right to make
    available, for an unlimited             available, for an unlimited
    period of time, their respective        period of time, their respective
    subject matter to the publIc by         subject matter to the public by
    sale or otherwise, without              sale or otherwise, without
    prejudice to paragraph 2.               prejudice to paragraph 3.
 ---pagebreak---                                       - 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          (3) unchanged
     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     Article 8   Limitations to Rights
(1) Member States may provide            (1) unchanged
     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.
 ---pagebreak---                                       - 33 -
    ORIGINAL PROPOSAL                            AMENDED PROPOSAL
(2) Irrespective of paragraph 1, any     (2) unchanged
    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      (3) unchanged
    prejudice to any existing or
    future legislation on
    remuneration for reproduction for
    prIvate use.
 ---pagebreak---                                      - 34 -
    ORIGINAL PROPOSAL                           AMENDED PROPOSAL
CHAPTER III   DURATION                  CHAPTER III DURATION
Article 9     Duration of Authors'      Article 9   Duration of Authors'
Rights                                  Rights
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        unchanged
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.
 ---pagebreak---                                      - 35 -
    ORIGINAL PROPOSAL                            AMENDED PROPOSAL
CHAPTER IV    COMMON PROVISIONS         CHAPTER IV   COMMON PROVISIONS
Article 11    Application in Time       Article 11   Application in Time
The provisions of this Directive        (1) The provisions of this Directive
shall apply also in respect of all          shall apply In respect of all
copyright works, performances,              copyright works, performances,
phonograms, broadcasts and first            phonograms, broadcasts and first
fixations of  cinematographic works         fixations of   cinematographic
and moving images referred to In this       works and moving Images referred
Directive which are, on 1 January           to In this Directive which are,
1993,  still protected by the               on 1 January 1993,    still
national legislation in the field of        protectable by the national
authors' rights and related rights.          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
 ---pagebreak---                                       - 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     unchanged
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.
 ---pagebreak---                                      - 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      unchanged
Member States.
Done at Brussels,
                 For the CounclI
                  The President
 ---pagebreak---                                                                      ISSN 0254-1475
                                                               COM(92) 159 final
                                                      DOCUMENTS
EN                                                                          16 06
                                Catalogue number: CB-CO-92-176-EN-C
                                                             ISBN 92-77-43547-X
Office for Official Publications of the European Communities
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