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IP/02/191

Brussels, 4th February 2002

Copyright: Commission pursues infringement proceedings against Belgium and Denmark

The European Commission has decided to pursue infringement proceedings against Belgium and Denmark for their failure to implement in full Directive 92/100 on rental and lending rights and on certain rights related to copyright. The Member States should have implemented the Directive by 1 July 1994. The Commission has decided to send Belgium a formal request, in the form of a reasoned opinion, that it implement into its national legislation the copyright provisions of this Directive as they apply to the public lending of works and other objects. The Commission has also decided to send Denmark a reasoned opinion asking it to amend its national regulations to bring them into line with the provisions of the same Directive which relate to distribution rights. The sending of a reasoned opinion is the second stage in the infringement proceedings provided for by Article 226 of the EC Treaty. If the Member State concerned fails to give a satisfactory response within two months of the date of receipt of the reasoned opinion, the Commission may decide to refer the matter to the Court of Justice of the European Communities.

Belgium - public lending of works

The Commission has decided to send Belgium a formal request, in the form of a reasoned opinion, that it transpose into national legislation certain provisions of Directive 92/100/CEE on rental right and lending right and on certain rights related to copyright. Whereas this Directive should have been applied as from 1994, Belgium has still not adopted the implementing decrees on public lending rights.

Under the Directive (Articles 1 and 5), authors and other rightholders have the exclusive right to authorise or prohibit the public lending of their works or other subject matter protected by rights related to copyright. The Member States may derogate from this right, converting it into the simple right to remuneration to be paid to authors, at least. They may also exempt certain categories of establishment from the payment of remuneration.

Since there are certain provisions of this Directive which Belgium has not implemented, no payments are being made for lending in that Member State. As a result, the Internal Market is not working as intended and the damage suffered by rightholders of every nationality since 1994 has led the Commission to pursue infringement proceedings against Belgium, which has not so far put forward any solution to remedy this infringement.

Denmark - distribution rights

The Commission has also decided to send a reasoned opinion to Denmark for failure to comply with certain provisions of Directive 92/100/CEE. According to Article 9, performers, producers of films and phonograms and broadcasters have the exclusive right to allow the objects protected by their rights to be made available to the public, or to forbid their being made available. This "distribution right" is not exhausted except where the first sale in the Community of that object is made by the rightholder or with his consent.

Denmark claims that this distribution right can only be exercised if the object has been made ("fixed") within the European Economic Area (EEA - European Union plus Norway, Iceland and Liechtenstein). As a result, the distribution of objects such as CDs and videos which are fixed outside the EEA is beyond the control of the rightholders when they are placed into circulation in Denmark.

This situation runs counter to the Directive, which explicitly states (Article 9(2) ) that the distribution right shall not be exhausted except where the first sale is in the Community and not elsewhere. In addition, this situation is preventing the Internal Market from working as intended: rightholders may invoke in other Member States the distribution right relating to objects from a non-EEA country imported into the EEA by Denmark and block the distribtution of such objects.

To date, no solution has been found with the Danish authorities to end this failure to comply with Community legislation.

Details of current infringement procedures against all Member States are available on the Europa website:

http://ec.europa.eu/secretariat_general/sgb/droit_com/index_en.htm#infractions


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