Copyrights, regels voor uitlenen: Commissie start procedure tegen zes lidstaten (en)

The European Commission has decided to formally request information from Spain, France, Italy, Ireland, Luxembourg and Portugal regarding their national implementation of the public lending right as harmonised by the 1992 Directive on the Rental and Lending Right and on certain rights related to copyright (92/100). According to the information available to the Commission, the Member States in question have failed to implement, or have incorrectly implemented, certain articles of the Directive into national law. In September 2002 the Commission published an in-depth analysis of the implementation by the Member States of the public lending right as harmonised by Directive 92/100, which should have been implemented by 1 July 1994 (IP/02/1303). The Commission is now requesting information by means of "letters of formal notice", the first stage in the infringement procedure provided for by Article 226 of the Treaty. It is also opening a separate infringement procedure against Portugal regarding the manner in which that country has implemented into national law the commercial rental right of film producers under Article 2 of Directive 92/100.

Under the terms of Directive 92/100 (Articles 1- 5), authors and other rightholders enjoy an exclusive lending right and may authorise or prohibit the public lending of their works or other protected subject matter. However, the Member States may derogate from these provisions and transform the exclusive lending right into a straightforward right to remuneration, which they are then obliged to pay, at least to authors. They may also exempt certain categories of establishment from payment of the remuneration.

In a report published in September 2002 (see IP/02/1303), the Commission noted that the public lending right is applied inconsistently across the European Union. In particular, some Member States have failed to implement the Directive correctly, eight years after the implementation deadline.

To put an end to the resulting distortions in the internal market and to the damage suffered by rightholders everywhere in the European Union, the Commission has decided to send a letter of formal notice to Spain, Italy, Ireland and Portugal: their laws, exempting all lending establishments from the obligation to remunerate rightholders, means that the public lending right is not applied at all in those states. The same is true of Luxembourg, which has failed to implement the public lending right, and of France, which recently published a law on the public lending right (July 2003), but has failed to implement the related implementing decrees, despite a commitment from the French authorities to do so by the end of 2003.

The Commission, as guardian of the Treaties, is determined to ensure the correct application of the public lending right by all the Member States. It is for this reason that it has already pursued a complaint against Belgium, which resulted in a ruling by the Court of Justice against that Member State on 16 October last (Case C-433/02).

Commercial rental right

With regard to the commercial rental right, the Commission has decided to open a separate infringement procedure against Portugal, because it has added video producers to the exhaustive list of rightholders prescribed by the Directive. The Commission is of the opinion that, by introducing a new rightholder who is not the "producer of the first fixation" of films explicitly laid down by Article 2 of the Directive, the Portuguese law introduces an element which is likely to interfere with the objective of harmonisation pursued by the Directive.

Up-to-date general information on infringements covering all Member States is available at the following address:

http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm