Directive 92/100/EEC is a

European Union directive A directive is a legal act of the European Union that requires member states to achieve a particular result without dictating the means of achieving that result. Directives first have to be enacted into national law by member states before thei ...

in the field of

copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...

law, made under the internal market provisions of the

Treaty of Rome The Treaty of Rome, or EEC Treaty (officially the Treaty establishing the European Economic Community), brought about the creation of the European Economic Community (EEC), the best known of the European Communities (EC). The treaty was sig ...

. It creates a "rental and lending right" as a part of copyright protection, and sets out minimum standards of protection for the related rights of performers, phonogram and film producers and broadcasting organizations.

Rental and lending right

The following rightsholders have the exclusive right, subject to limitations, to authorize or prohibit the rental or lending of their works rt. 2(1) *authors in respect of the original and copies of their works (except buildings and applied art); *performers in respect of fixations of their performance; *phonogram producers in respect of his phonograms; and *producers of the first fixation of films in respect of the original and copies of their films. This list is limitative:

Portugal Portugal, officially the Portuguese Republic ( pt, República Portuguesa, links=yes ), is a country whose mainland is located on the Iberian Peninsula of Southwestern Europe, and whose territory also includes the Atlantic archipelagos of th ...

has been censured by the

European Court of Justice The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European U ...

for creating a lending and rental right in favor of videogame producers, as this annulled the exclusive nature of the rights of film producers. The rental and lending right may be transferred, and is presumed to be transferred in film production contracts unless they contain provisions to the contrary rt. 2(5) Member States may extend the presumption to authors and performers. However, even once the rental and lending right is transferred, the author or performer retains an inalienable and unaidable right to equitable compensation for the rental and lending of their works: this compensation is administered by the collecting societies. Member States may allow a derogation for public lending (i.e. public

libraries A library is a collection of Document, materials, books or media that are accessible for use and not just for display purposes. A library provides physical (hard copies) or electronic media, digital access (soft copies) materials, and may be a ...

) provided that authors obtain some

royalties A royalty payment is a payment made by one party to another that owns a particular asset, for the right to ongoing use of that asset. Royalties are typically agreed upon as a percentage of gross or net revenues derived from the use of an asset o ...

rt. 5(1) Member States may also exempt "certain categories of establishments" from the payment of royalties rt. 5(2) These provisions is interpreted strictly: Portugal has been censured for a transposition which effectively exempted all public institutions from payment of royalties, and

Belgium Belgium, ; french: Belgique ; german: Belgien officially the Kingdom of Belgium, is a country in Northwestern Europe. The country is bordered by the Netherlands to the north, Germany to the east, Luxembourg to the southeast, France to ...

for failing to set a rate of remuneration (making its collection impossible). Several countries already had

Public Lending Right A Public Lending Right (PLR) is a program intended to either compensate authors for the potential loss of sales from their works being available in public libraries or as a governmental support of the arts, through support of works available in pu ...

systems. However, the

European Commission The European Commission (EC) is the executive of the European Union (EU). It operates as a cabinet government, with 27 members of the Commission (informally known as "Commissioners") headed by a President. It includes an administrative body ...

pointed out in a report in 2002Report from the Commission to the Council, the European Parliament and the Economic and Social Committee on the public lending right in the European Union
(PDF), 16 September 2002 that many of these PLR systems failed to correctly implement the directive.

Related rights

The Directive sets out the minimum rights which Member States must accord to performers, phonogram and film producers and broadcasting organizations ( related rights), based closely on the provisions of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations. The preamble is clear (para. 20) that Member States may go beyond this minimum protection if they so wish. The ''fixation right'' (Art. 6) for performers with respect to their performances and broadcasting organizations with respect to their broadcasts is the exclusive right to authorize or prohibit recording. The ''reproduction right'' (Art. 7) is the exclusive right to authorize or prohibit 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. The ''distribution right'' (Art. 9) is the exclusive right to make available to the public, for sale or otherwise, subject to the first-sale doctrine: *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 broadcasts. The fixation right, by its nature, is personal: the reproduction and distribution rights may be transferred, assigned or licensed. Performers have the exclusive right to authorize or prohibit the broadcasting of their live performances, but not of recordings nor of rebroadcasts rt. 8(1) Broadcasting organizations have the exclusive right to authorize or prohibit the rebroadcasting of their broadcasts "by wireless means", and the communication of their broadcasts to the public in places which charge an entrance fee rt. 8(3) Phonogram producers have the right to an equitable remuneration (which may be fixed by agreement or regulation) if their published recordings are broadcast or played in public: this royalty is shared with the performers rt. 8(2) The limitations on related rights are of the same nature as limitations on copyright. Four possible limitations are explicitly mentioned in Article 10: *private use; *use of short excerpts in connection with the reporting of current events; *ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts; *use solely for the purposes of teaching or scientific research. This article is an almost verbatim copy of Article 15 of the Rome Convention.

Duration

The Directive originally fixed minimum periods of protection for the authors' rights and related rights which it created (Arts. 11, 12) in line with the

Berne Convention for the Protection of Literary and Artistic Works The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, was an international assembly held in 1886 in the Swiss city of Bern by ten European countries with the goal to agree on a set of leg ...

and the Rome Convention "without prejudice to further harmonization". The further harmonization came with the Directive harmonizing the term of protection of copyright and certain related rights, which fixed the protection periods across the EU and repealed these two articles.

Implementation

References

''Commission of the European Communities v Portuguese Republic''
(Case C-61/05), Judgment of the Court (Third Chamber) of 2006-07-13.
''Commission of the European Communities v Portuguese Republic''
(Case C-53/05), ''OJ'' no. C212 of 2006-09-02, p. 7.
''Commission of the European Communities v Kingdom of Belgium''
(Case C-433/02), ''OJ'' no. C289 of 2003-11-29, p. 10; ''ECR'' (2003) I-12191.

# Rebroadcasting by cable distribution is regulated by the Directive on the co-ordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (93/83/EEC), ''OJ'' no. L248 of 1993-10-06, p. 15. # The question of limitations on copyright and related rights is treated in more detail (but without amending Art. 10) in the Directive on the harmonization of certain aspects of copyright and related rights in the information society (2001/29/EC), ''OJ'' no. L167 of 2001-06-22, p. 10, corrected by ''OJ'' no. L006 of 2002-01-10, p. 70.
Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights
''OJ'' no. L290 of 1993-11-24, p. 9.

(Paris Act), as amended on 1979-09-28. # Luxembourg has also been censured by the

for its implementation of the public lending right
''Commission of the European Communities v Grand Duchy of Luxembourg''
(Case C-180/05) ''OJ'' no. C143 of 2006-06-17, p. 20.

External links