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Brussels, 21 December 2004

Copyright: Spain, Ireland and Portugal before the Court over incorrect application of the public lending right

The European Commission has decided to refer Spain, Ireland and Portugal to the European Court of Justice for failure to implement fully into national legislation the public lending right provided for by Directive 92/100/EEC on rental right and on certain rights related to copyright. Portugal is also to be referred to the Court for failure to implement correctly the rental right set out in the same Directive. The Directive aims to ensure that the rights of authors and others who create cultural products are protected throughout the European Union when their works are lent or rented and thus that their ability and incentive to create is maintained (see IP/02/1303).

Public lending right: Spain, Ireland and Portugal

Harmonisation of the public lending right is important for the single market because, among other reasons, the lending activities of public institutions can have a significant effect on the commercial rental market. For example, if a book can be borrowed from a public library, there may be less demand to buy it. That can reduce income for rightholders - unless they also receive payment when their work is lent by public libraries.Under the terms of Directive 92/100/EEC, authors and other rightholders have an exclusive right to authorise or prohibit the public lending of their works or other subject matter to which they hold copyright. Member States may nonetheless, instead of the exclusive lending right, establish a right for authors to be remunerated when their works are lent by public libraries. They may also exempt certain categories of establishments from paying such remuneration. The Commission has found that Spain, Ireland and Portugal are not applying this provision, because they simply exempt all public lending institutions. It has therefore decided to refer those three Member States to the European Court of Justice.

The Court has already ruled against Belgium in a similar case in October 2003 (Case C-433/02), following infringement proceedings by the Commission. That ruling confirmed that, if the circumstances prevailing in a Member State do not allow a distinction to be made between various categories of establishments, all the establishments concerned must pay the remuneration. Belgium subsequently adopted in April 2004 a decree implementing its 1994 law on the public lending right and the Commission has therefore decided to close the infringement proceedings against it. The Commission has also closed a case against France after it published in September 2004 a decree bringing its June 2003 public lending right law into line with the Directive.

Italy and Luxembourg have also had similar provisions exempting all public lending institutions from remunerating authors, but are currently passing laws aimed at aligning their national legislation with the provisions of the Directive.

As a result, the Commission has postponed its decision on whether to refer them to the European Court of Justice.

The Commission has decided to send letters of formal notice – the first stage of infringement procedures under Article 226 of the EC Treaty – asking Denmark, Finland and Sweden for further information about possible indirect discrimination in relation to the public lending right. In Denmark, the remuneration for the public lending of books is granted to authors, translators and illustrators of books published in Danish only. In Sweden, the remuneration for the public lending of books and audio recordings is limited to authors who have written in Swedish or have their habitual residence or main activity in Sweden. In Finland, the remuneration is limited to authors, translators and illustrators of books who live or have lived in Finland and whose works “enrich Finnish cultural life”. Furthermore, in Finland, all categories of public lending establishments are exempted from the payment of remuneration.

Portugal: rental right

The Commission has also decided to refer Portugal to the Court for failure to implement certain provisions on the rental right provided for by Directive 92/100/EEC. The Directive provides an exhaustive list of rightholders in the field of rental rights who can authorise, against payment, or prohibit the marketing of a work for rental. The Commission found that, by adding a new category (producers of videos) to that exhaustive list, Portuguese law could impede the functioning of the single market. It makes it more difficult, firstly, to know whom to contact to obtain a licence for the exploitation of the work and, secondly, for artists and performers to identify by whom they have the right to be paid for each copy of the work rented.

For the latest information on proceedings concerning all Member States, consult the following site:

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