法律英语Rentalrigh.doc

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E.I.P.R. 1991, 13(4), 117-123
European Intellectual Property Review
1991
Rental right, lending right and certain neighbouring rights: the EC Commission's proposal for a Council Directive
Silke Von Lewinski
© 2012 Sweet & Maxwell and its Contributors
Subject: Intellectual property. Other Related Subject: European Union
Keywords: Copyright; EEC law; Rental rights
Legislation: Commission Directive on rental rights, lending rights and certain rights related to copyright (Draft) 
*117 On 5 December 1990, the EC Commission adopted a proposal for a Council Directive on rental right, lending right, and certain rights related to copyright.1 It represents the second proposal2 based on the Green Paper on Copyright.3 It combines two fields of activity: rental and lending on the one hand, based on the proposals of Chapter IV of the Green Paper (distribution right, exhaustion and rental right) which have been partially extended, and, on the other hand, certain rights related to copyright based on Chapter II (piracy). The Commission considers this combination to be appropriate because the harmonisation of a rental or lending right for certain owners of neighbouring rights does not seem reasonable, as long as there are still some Member States which do not provide any neighbouring rights protection at all, not even a simple reproduction right.4Since some Member States would have to introduce certain neighbouring rights according to this proposal, it seemed to be necessary to deal, in Chapter III of the proposed Directive, with the duration of rights. The Commission held a Hearing for interested circles on all of these issues on 18 and 19 September 1989 in Brussels.
Besides the preamble and the 13 proposed Articles,5 the EC Commission's document includes in its 68 pages the explanatory memorandum, which covers in its Part 1 (‘General’) considerations on the purpose of the proposed Directive as well as the need for harmonisation at the Community level, the concept of harmonisation and the legal basis. Part 2 (‘Particular Provisions’) contains detailed annotations on the Articles. In Part 1, a comprehensive analysis of the existing protection both in the Member States and according to international law leads to the Commission's conclusion that there is a need for action at the Community level. It bases the proposal on Article 100A of the EEC Treaty6 and, as far as the provision of services and the pursuit of activities by self-employed persons are concerned, on Articles 57(2) and 66 of the EEC Treaty.
The Commission's Principles of Harmonisation: The Main Examples
Fundamental ideas of the Commission in general
The manner in which the whole text of the explanatory memorandum was drafted reflects the Commission's positive attitude towards the need for adequate legal protection in the field of copyright and neighbouring rights. Thus, although copyright places its owner in a monopoly position, it is not principally regarded as a barrier to trade which would have to be eliminated. Moreover, the Commission stresses the need to harmonise laws at a high standard of protection within the Community in order to avoid further negative effects of insufficient protection and to secure the economic basis for continuing creation and investments in European culture, the identity and variety of which has to be maintained.7
Comprehensive approach
One of the main points of criticism brought against the Green Paper was its supposed lack of adequate conceptual framework and of coherence. This criticism cannot be maintained with respect to the present proposal. The following examples will show how the Commission arrived at a harmonisation proposal which takes into account the structure of copyright systems.
Duration
Chapter III of the proposal includes only a preliminary harmonisation of the duration of authors' and related rights. The Commission thereby decided to take a comprehensive approach, namely to provide for the harmonisation of all terms of protection in a separate proposal8 but *118 not within the framework of the present proposal which covers only the harmonisation of particular rights. Thus, the Commission took into account that different terms of protection are always connected to the respective subject-matter protected, not to rights. Furthermore, the balance between the duration of authors' rights and of neighbouring rights may be best regarded in the context of one single proposal.
Lending right
The Commission decided, contrary to the proposal of the Green Paper, to include a lending right in its proposal for a Directive. On the one hand, this was due to the outcome of the Hearing and, on the other hand, to a number of valuable arguments such as, for example, the economic connections between rental and lending9 and the fact that fundamental copyright arguments are valid for a lending right as well as for rental rights.10 In order to present a realistic proposal, the Commission provided for possibilities to derogate from the copyright-based exclusive lending right.11 This shows that the Commission intends to achieve, as a first step, at least fundamental harmonisation which will strengthen the protection, instead of not providing any harmonisation at all.
Right owners and work supports
The Commission responded to frequent and justified criticism12 by providing a rental and lending right not only to producers of video recordings, but at the same time to the authors and performing artists who contributed to the video recording. Moreover, on reasonable grounds, the Commission did not limit its proposal to rental or lending of sound or video recordings.13
Relations between the right owners
According to the main criticism, the Green Paper was drafted one-sidedly in favour of industry and so against authors.14 The present proposal cannot be called one-sided in favour of any group of right holders. The Commission has chosen an impressive new way of finding a balance between the different right owners, which is laid down in Article 3 of the proposal. The Article takes into account that nowadays it is normally not sufficient to determine, along with the introduction of new rights,15 who should be the first right owner. Rather, it is necessary to secure that the first right owners so determined will effectively benefit from their rights. Without specific legislative measures, this would often not be the case because the weaker parties of exploitation contracts, usually authors and performing artists as opposed to the producers of sound or video recordings, normally assign their rights to the producers for exploitation of the work without, however, obtaining separate remuneration for every right or more than remuneration on a flat-rate basis and at very low percentages.16 The Commission states that, having regard to the existing situation and to the underlying purpose of copyright, total contractual freedom is not acceptable.17 The present proposal deserves commendation for the very reason that it includes a separate Article (Article 3) dealing with the problem just mentioned, thereby underlining its importance. The same is true of the solution offered by Article 3, a combination of exclusive rights and remuneration rights. An exclusive right enables the right owner to exploit the right according to his economic needs and market developments. It provides him with a strong bargaining position vis-à-vis the user and thereby with the possibility of obtaining a more adequate remuneration than in the case of a remuneration right. The advantage of a remuneration right consists in the fact that authors and performing artists, being the typically weaker parties of contracts, normally obtain higher remuneration from the exploitation of rights than in the case of an exclusive right because in this case they must individually negotiate the remuneration to be paid by the producer for assignment of the exclusive right.18 These advantages are combined by way of granting an assignable exclusive right and, in addition, by providing a right to obtain an adequate part of the payment from the exploitation of a work, that is payment for authorising rental or lending by a third person. The latter right cannot be waived and may be assigned only for administration. This is intended to guarantee a balanced, effective participation in the economic exploitation of the work.
The concept of harmonisation
According to a principle of the Commission, harmonisation measures should not create contradictions and inconsistencies within the national laws of the Member States and they should not affect existing particularities of national copyright laws, unless it is unavoidable. Therefore, the Commission does not define specifically the right owners and subject-matter, since the international law of the Conventions has already indirectly produced a certain degree of harmonisation. These questions could not reasonably be harmonised in the scope of a proposal on the harmonisation of particular rights, since they are relevant to the law of copyright and related rights as a whole.19 Likewise, the Commission does not propose a detailed provision on the limitations to the rights of Chapter II, thereby taking into account that limitations are principally valid for all rights of a certain kind and not *119 only for the fixation, reproduction and distribution rights of Chapter II. Moreover, the limitations to the neighbouring rights in most Member States are regulated by way of partial or complete references to the respective provisions in the field of authors' rights. These solutions could be adversely affected by a detailed regulation of limitations within the scope of Chapter II.20
Furthermore, the proposed Directive defines the rental and lending rights and the distribution right (Article 7) in a way which allows for the possibility of implementing the rights in Member States which employ the concept either of droit de destination or of the distribution right together with its exhaustion.21 Thereby, the Commission avoids creating unnecessary obstacles in the way of an agreement between the Member States.
The Particular Articles
In addition to the comments made above, some annotations need to be made with respect to the particular Articles.
Chapter I
Article 1 provides for the harmonisation of a rental and a lending right and for a definition thereof. The Commission gives a number of reasons for its decision for according an exclusive nature to these rights.22 The terms ‘rental’ and ‘lending’ are defined according to whether the activity is for profit-making purposes. The most important cases are rental by video- and CD-rental shops and lending by public libraries. The wording ‘not fordirect profit-making purposes’ in Article 1(3) refers to a particular kind of lending library which falls to be treated in the same way as ordinary public libraries, in so far as their activities are comparable. These are libraries organised or sponsored by public or private companies.23 The words ‘for a limited period of time’ are merely to exclude from the definition of rental and lending forms of making available for an unlimited period of time, such as sale. The definition includes any acts by which the provisions of Article 1 are circumvented or intended to be circumvented, such as the sale with option of repurchase at a price which is lower than the selling price.
The Commission makes it clear that rental and lending always refer to material objects only. Accordingly, the making available for use of a film by way of electronic data transmission (downloading) is not covered because this form of use is considered to be a public performance in most Member States and therefore would have to be harmonised in the context of an eventual harmonisation of the right of public performance. Paragraph 4 makes clear that the exhaustion of an exclusive distribution right according to the law of a particular Member State does not affect the existence of the rental and lending rights. These rights accordingly subsist even after the act of first putting into circulation a copy of a work.
With respect to Article 2, the annotations concerning issues in the field of films deserve particular mention.24The application of Article 2 to Member States with a Continental law system means that the natural persons called ‘film authors’, such as the film director, as well as the film producers (normally by way of a specific neighbouring right) are both first owners of the rental and lending rights. For Member States with an Anglo-American copyright system, Article 2 means that the first owner of the rental and lending rights is the film producer only, who is, in these states, normally deemed to be the ‘author’.25 Although the Commission considers the protection of creators of works, such as film directors, as desirable and mentions section 77 of the UK Copyright Act 198826 as achieving a first step (the conferring of moral rights on directors), it does not regard the harmonisation of such protection in the framework of the present proposal as reasonable because this represents a general problem.
The limitation to ‘first fixations’ of films is in accordance with the definition of phonogram producers in the Rome Convention (see Article 3c RC) and follows the idea of section 5(2) of the UK Copyright Act 1988.
The Commission gives a number of strong reasons for the fact that paragraph 1 covers all of the main groups of right owners whose works and protected subject-matter are rented or lent. It argues strongly against any tendencies to neglect creators and performing artists in comparison to treatment of producers.27 The Commission accepts that Member States may provide the rental and lending rights for further groups of neighbouring right owners.28
Paragraph 2 excludes from protection, according to the Commission, as well as three-dimensional buildings and works of applied art, similar cases in which the rental or lending of the protected subject-matter is of minor importance.29
Article 3 applies only to the case in which the right owners authorise rental or lending by a third person, that is exercise their right for the purpose of exploitation of the work. For example, where the composer and the performing artist assign their rental rights to a phonogram producer who authorises the rental of the CD concerned against payment by a third person, even the composer and the performing artist retain a right to obtain an adequate part of the payment, ‘notwithstanding’ any assignment of the exclusive right itself or granting of licences. The explanatory memorandum indicates, by way of examples, several possibilities of implementing Article 3 in national law.
For instance, Member States may make imperative provisions in the field of contract law, such as the requirement that the right to obtain an adequate part of the payment within the meaning of Article 3 has to be stipulated separately for renta