Brussels, 21 March 2005
The European Commission has decided to refer Italy and Luxembourg to the European Court of Justice for failure to implement fully into national legislation the “public lending right” provided for by a 1992 Directive. By introducing a public lending right” the EU is aiming to ensure that creative effort is protected and encouraged throughout the European Union. In a related development, the Commission has also launched infringement proceedings against Belgium, Finland and Sweden because these Member States have not complied with the 2004 rulings of the Court requiring them to implement the 2001 Copyright Directive (see IP/01/528). Should they continue in not complying with the Copyright Directive, the Commission, after issuing a “reasoned opinion” formally requesting them to do so, may ultimately ask the Court for fines to be imposed on these Member States.
The Public Lending Right: Court cases involving Italy and Luxembourg
In Italy and Luxembourg authors do not receive any payment if their works are lent by public establishments. In Luxembourg this includes all public lending establishments and in Italy, public music and book libraries. This is contrary to the 1992 EC Directive on rental right and on certain rights related to copyright, which requires that authors be compensated when their works are rented out or lent. The Commission has therefore decided to refer the cases to the European Court of Justice.
Under the Directive, authors have the exclusive right to either authorise or prohibit the lending of their works. However, the Directive allows Member States to derogate from this right, provided that authors are remunerated for such use of their works. Remuneration for authors has to be ensured by the State, even if the works are lent free of charge to the public.
Neither Italy nor Luxembourg have legal provisions in place for ensuring that authors are remunerated if their works are used for public lending. As both Member States had previously informed the Commission that they would comply with the Directive, the Commission, in December 2004, postponed its decision to refer them to the Court. However, the Commission is not aware that they have yet taken any action to comply with the Directive. Furthermore, Italy and Luxembourg must be treated on an equal footing as those Member States (Spain, Ireland and Portugal) whose cases were sent to the Court last December (see IP/04/1519).
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 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 right holders and thus indirectly their incentive to create - unless they also receive payment when their work is lent by public libraries.
The 2001 Copyright Directive: non-implementation by Belgium, Finland and Sweden, despite Court ruling
The 2001 Copyright Directive is an essential plank in updating EU copyright law and providing an adequate level of copyright protection for authors and other right-holders in the digital environment. In this respect, the Copyright Directive requires Member States to provide adequate legal protection against “hacking” or other disabling of that “anti-copying” devices and other equipment used to protect copyright when works are published digitally.
The Directive aims to ensure that all copyright material including books, films and music is adequately protected. It provides a secure environment for cross-border trade in copyright protected goods and services, and will facilitate the development of electronic commerce in new and multimedia products and services.
Moreover, it is the means by which the European Union and its Member States implement the two 1996 World Intellectual Property Organisation (WIPO) "Internet Treaties" which have adapted copyright protection to digital technology. This makes implementation all the more urgent.
By adopting the Directive in the Council, Member States agreed to implement it before 22 December 2002. The European Court has already ruled against Belgium, Finland, Sweden and the UK – for the territory of Gibraltar - for their failure to implement the Directive. The Commission has now decided to start infringement proceedings against Belgium, Finland Sweden for non-compliance with the Court’s rulings. In the case of the United Kingdom, the Commission has postponed its decision to start infringement proceedings as the UK authorities have informed the Commission that implementation in the territory of Gibraltar is imminent.
For the latest information on infringement proceedings concerning all Member States, consult the following site: