[Ecommerce] Public Lending Right in European Union

[James Love]

This report addresses the different rules in Europe for lending 
copyrighted works.

Jamie
	http://europa.eu.int/eur-lex/en/com/rpt/2002/com2002_0502en01.pdf


Brussels, 12.9.2002
COM(2002) 502 final
REPORT FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN
PARLIAMENT AND THE ECONOMIC AND SOCIAL COMMITTEE
ON THE PUBLIC LENDING RIGHT IN THE EUROPEAN UNION

   [I have omitted text of footnotes]

1. INTRODUCTION: OBJECTIVES OF THE COMMUNICATION

On 19 November 1992, the Council of Ministers adopted Directive 
92/100/EEC, on the Rental and Lending Right and Certain Related Rights1. 
The Directive was to be implemented by 1 July 1994. Article 5(4) of the 
Directive provides that the Commission should draw up a report on public 
lending in the Community before 1 July 1997. Since some Member States 
implemented the Directive only recently, this deadline could not be met. 
The concept of public lending is deeply rooted in the national cultural 
traditions of the Member States. There are considerable differences 
among them in the way public lending operates. As a result, the 
provisions of the Directive on this issue only amounted to a limited 
harmonisation. Consequently, a report on the functioning of the public 
lending right was requested of the Commission and should be presented by 
the Commission to the European Parliament, the Council and the Economic 
and Social Committee.

The fact that the obligation to present a report was expressly included 
in Article 5 underlines the particular interest regarding developments 
in the field of the public lending right (PLR). In line with Article 
5(4) of the Directive, the objective of this report is to assess the 
situation of public lending in the Community and to evaluate the 
implementation by Member States of the relevant provisions of this 
Directive, including the degree of harmonisation achieved and to draw 
conclusions for the treatment of PLR in the European Union.

2. LEGAL SITUATION CONCERNING THE PUBLIC LENDING RIGHT BEFORE ADOPTION 
OF THE DIRECTIVE

The origins of the PLR are to be found in the early twentieth century 
and are closely linked to the development of public libraries. The 
importance of private libraries, which were "lending" books against 
payment or membership fees, decreased as public libraries, accessible 
without any payment, appeared. After World War II, the number of private 
libraries reduced to insignificance. Due to the fact that the increase 
in the number and improvement of public libraries was strongly supported 
by the State, the number of lent items increased considerably. This led 
authors to ask for remuneration for this increased use of their works. 
Legislators did not, however, react to this immediately but introduced 
progressively the PLR in form of an exclusive right or a right of 
remuneration for authors.

The PLR was first introduced in the Scandinavian countries, (Denmark 
(1946) Sweden (1955), Finland (1961)), followed by the Netherlands 
(1971), Germany (1972) and the United Kingdom (1979/1982). Germany was 
the only country in which the PLR was integrated into copyright 
legislation whereas in the other




3.3. The concept of PLR in the Directive

The PLR is set out in the Directive as an exclusive right to prohibit or 
authorise public lending with or without payment.

The Directive states in its Article 1 (1) that Member States must 
provide "a right to authorise or prohibit the rental and lending of 
originals and copies of copyright works, and other subject matter as set 
out in Article 2 (1)". According to Article 2, the lending right is 
granted to authors, performing artists, phonogram producers and film 
producers. The Directive does not cover rental and lending rights in 
relation to buildings and to works of applied art (Article 2(3)).

     [snip]


However, while the Directive sets out the obligation to introduce or 
maintain an exclusive PLR, it also allows for certain derogations and 
limitations from this right as outlined in Article 5.

    [snip]

Article 5 provides for a non-obligatory derogation from the exclusive 
lending right in respect of public lending. Under certain conditions, it 
allows Member States to replace the exclusive right by a remuneration 
right, or even not to provide for any remuneration at all. The Article 
moreover leaves Member States much discretion in the way they exercise 
the PLR.

    [snip]


3.4. The resulting obligations of Member States

To sum up, Article 1 harmonises the exclusive right of public lending 
for authors with respect to their works and for performers, phonogram 
producers and film producers with respect to their protected subject 
matter. Whilst Article 5 gives Member States much flexibility in 
derogating from the exclusive lending right, a remuneration must at 
least be provided for authors. . . . Member States may exempt certain, 
but not all, establishments within the meaning of Article 5(3) from 
paying the remuneration.

4.1. PLR as set out at national level by the Member States

An exclusive lending right for all kinds of works exists in some Member 
States. Others have provided for a remuneration right instead. The 
derogation to the PLR under Article 5(3) for the benefit of certain 
categories of establishments is used widely. Greece5, France6, Ireland7, 
Italy8 , Portugal9, Spain10 and the United Kingdom11 grant an exclusive 
lending right, at least to certain categories of rightholders.

In Greece, the Copyright Act (CA) grants an exclusive PLR to authors, 
performing artists, phonogram and film producers, as well as to 
posthumous editors.

In France, the harmonised PLR has not been implemented specifically. It 
is claimed that the existing French law already grants authors, 
performers, producers of phonograms and videograms an exclusive lending 
right. The Ministry for Culture announced recently its intention to 
present a draft law for the implementation of the Directive in the near 
future. This draft shall apparently propose the granting of a 
remuneration for authors of books and publishers for the lending of 
protected works.

In Italy, where there was no PLR prior to the Directive, an exclusive 
lending right (as part of the distribution right, but without exhaustion 
after the first sale) has been introduced for authors and performers. 
With respect to phonograms, films and videograms, the exclusive right 
exhausts 18 months after the first distribution.

Ireland has implemented the Directive only recently, by the Copyright 
and Related Rights Act 2000. The law grants an exclusive distribution 
right. This right includes the public lending of copies of a work and of 
other protected matter.

The Portuguese Copyright Act contains an exclusive distribution right 
for authors, performers and producers of phonograms and videograms 
expressly covering the PLR. The PLR continues to apply after the 
distribution.

In Spain, an exclusive public lending right is granted to authors, 
performers,producers of phonograms and film producers.

Under the British PLR scheme, the United Kingdom provides for an 
exclusive PLR for authors, film and phonogram producers and for 
performers. Authors are entitled to a remuneration when their books are 
lent by public libraries. Copyright is not infringed by the lending of 
copies of a work by educational establishments or by the lending of a 
book by a public library if the book is within the PLR scheme.

Instead of an exclusive right, or after its exhaustion, a remuneration 
right for the public lending of protected works has been granted in 
Austria12, Denmark13, Finland14, Germany15, Luxembourg16, the 
Netherlands17 and Sweden18.

In Austria, the PLR is part of the distribution right. Authors, 
performers, producers of phonograms, film producers and broadcasting 
organisations are granted a right to equitable remuneration for public 
lending after the exhaustion of the distribution right (exhausted after 
the first authorised distribution).

In Denmark, the PLR is part of the exclusive distribution right of 
authors, performers, producers of phonograms and film producers. The 
exclusive PLR is exhausted after the first authorised distribution of 
the respective object. This does not apply to cinematographic works and 
computer programs in digitised form. Authors, translators, illustrators, 
and performers enjoy a remuneration right when their works or other 
subject matter are lent by public libraries.

In Finland, a PLR scheme exists which is based on the 1961 Act on grants 
and subsidies for authors and translators. The PLR is covered by the 
exclusive distribution right and is subject to exhaustion except for 
public lending of cinematographic works or computer programs. Thus, only 
authors of cinematographic works and computer programs are granted an 
exclusive PLR once distribution has taken place. Authors of other works 
have in principle a right to remuneration for public lending.

In Germany, the exclusive PLR is also exhausted after the first act of 
authorised distribution and authors enjoy a remuneration right for 
specific acts of lending. The lending institutions concerned include 
public libraries, public collections of audiovisual or audio recordings 
or other original works or copies.

The legislation in Luxembourg had granted an exclusive PLR for authors, 
performers and phonogram and film producers, subject to exhaustion after 
the first act of authorised distribution to the public. New legislation 
adopted in 2001 grants a remuneration right only for authors and 
performers. A decree will have to be introduced to complete the 
transposition of the Directive. This decree will set out both the actual 
amount of remuneration and a list of establishments exempted from any PLR.

In Netherlands, the exclusive PLR is exhausted after the first 
authorised distribution of the respective object; the Dutch law provides 
for a remuneration right for authors, performers, and producers of 
phonograms and films.

In Sweden, a new PLR scheme started in 1999. A remuneration is granted 
for public lending of books, phonograms and printed music in public and 
school libraries. Half of the amount paid for the lending of phonograms 
is paid to authors and half to performers.

In Belgium19, a combined solution has been chosen: the PLR of the 
Copyright Act which existed previously continues to apply for authors 
and performing artists, as well as for producers of phonograms and of 
films. These rightholders enjoy a remuneration right for public lending 
of the copies of their works. Belgian Law allows the public lending of 
audiovisual works and sound recordings only 6 months following the first 
publication of the objects concerned against remuneration. Certain 
categories of establishments are exempted from paying any remuneration 
for their lending activities. A Royal Decree, not yet enacted, is 
supposed to lay down the details of the remuneration and any exemptions 
thereto.

    [snip]
-- 
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040