1. Copyright and related rights in the EU: rental and lending, satellite and cable and term directives Turin, October 2011 Dr E. Derclaye University of Nottingham

2. (c) E. Derclaye 2003-20102 Rental and Lending Directive

3. (c) E. Derclaye 2003-20103 Rental and lending Directive 4 chapters (now codified Directive 2006/115/EC ) 1) Rental and lending rights – art. 1-5 2) Rights related to copyright (incorporates Rome convention) – art. 6-10 3) Duration – repealed because of Term Directive (art. 11-12) 4) Common provisions

4. (c) E. Derclaye 2003-20104 Definitions – art. 1 “ 'rental' means making available for use, for a limited period of time and for direct or indirect economic or commercial advantage” “ 'lending' means making available for use, for a limited period of time and not for direct or indirect economic or commercial advantage, when it is made through establishments which are accessible to the public”

5. (c) E. Derclaye 2003-20105 Rental and lending Directive Beneficiaries: art. 2: authors, performers, producer of films and of phonograms Authors of buildings and works of applied art do not benefit from R & L rights (art. 2.3) R & L rights can be transferred and licensed (art. 2.4) No exhaustion of R & L rights by first sale or distribution of originals or copies of copyright works or other subject matter (article 1(4)).

6. (c) E. Derclaye 2003-20106 Rental and lending Directive Principal director of film is deemed to be the author (presumption) and Member States can provide that others shall be considered authors (option) - article 2 (2) When there is contract between performers and film producers, performers = presumed to have assigned their rental right to the film producer unless express provisions to the contrary by contract (art. 2.5) and Member States MAY provide (option) for a similar presumption as regards authors (art. 2.6) If Member State provides (option, art. 2.7) that the signing of a contract between performer and film producer has the effect of authorising rental, such contract MUST provide for an equitable remuneration for the performer’s right.

7. (c) E. Derclaye 2003-20107 Rental and lending Directive Even if P or A has transferred his rental right concerning phonograms or an original or copy of a film, they must retain right to equitable remuneration - it cannot be waived (no option for MS) (article 4.1) and 4.2) and can be administered by collecting society Rental of computer programs – art. 3 – see Software Directive

8. (c) E. Derclaye 2003-20108 Rental and lending Directive – art. 5 Derogation from the exclusive public lending right: Option for Member States: can derogate to the full recognition of the exclusive public lending right for copyright works and their copies at the condition that at least authors get a remuneration for this lending So permits Member states to provide for compulsory licensing in regard only of the public lending right In addition, Member States can exempt (option) certain categories of establishments from the payment of the remuneration

9. (c) E. Derclaye 2003-20109 Rights related to copyright – art. 6-10 Beneficiaries are: P, PP, PFFF (first fixations of films) and BO Several rights for 4 beneficiaries, namely – fixation (P and BO) – broadcasting and communication to the public (P, PP, BO) – distribution (P, PP, PFFF, BO) and exhaustion with first sale in the Community + 4 limitations (optional) + more if they wish + TST (art. 10) Conclusion: lots of options => diverse levels of harmonisation

10. VEWA – 30 June 2011, C-271/10 Facts: VEWA, Belgian collecting society, sought annulment of decree because in its view, a flat rate remuneration of 1€ per person per year is not equitable remuneration for loan or rental; Council of State referred questions Question: does art. 5(1) of Rental and Lending Directive preclude legislation under which remuneration payable to authors for public lending is calculated exclusively according to the number of borrowers registered with public establishments on the basis of a fixed flat-rate amount per borrower per year? E. Derclaye 201110

11. VEWA As per previous judgments, the term remuneration must be given uniform interpretation throughout the EU and be interpreted in light of all the Directives in intellectual property field Remuneration and compensation are both established to recompense authors (implies the ECJ thinks they mean the same?) But ‘equitable remuneration’ and ‘remuneration’ do not mean the same E. Derclaye 201111

12. VEWA In SENA, the ECJ held that for a remuneration to be equitable it must be measured in light of the value of the use of protected work in trade But in this case, it is lending which does not have an economic or commercial character => cannot be assessed as per SENA and will be less than that which corresponds to equitable remuneration or even be fixed on a flat rate basis BUT cannot be symbolic E. Derclaye 201112

13. (c) E. Derclaye 2003-201013 Satellite and Cable Directive

14. (c) E. Derclaye 2003-201014 Definition of satellite – art. 1 “ 'satellite' means any satellite operating on frequency bands which, under telecommunications law, are reserved for the broadcast of signals for reception by the public or which are reserved for closed, point-to-point communication. In the latter case, however, the circumstances in which individual reception of the signals takes place must be comparable to those which apply in the first case.”

15. (c) E. Derclaye 2003-201015 Definition of 'communication to the public by satellite’ – art. 1.2.a. “ 'communication to the public by satellite' means the act of introducing, under the control and responsibility of the broadcasting organization, the programme-carrying signals intended for reception by the public into an uninterrupted chain of communication leading to the satellite and down towards the earth.”

16. (c) E. Derclaye 2003-201016 Art. 1.2.b “The act of communication to the public by satellite occurs solely in the Member State where, under the control and responsibility of the broadcasting organization, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth.” (emission theory)

17. (c) E. Derclaye 2003-201017 Art. 1.2.d “(d) Where an act of communication to the public by satellite occurs in a non-Community State which does not provide the level of protection provided for under Chapter II, (i) if the programme-carrying signals are transmitted to the satellite from an uplink situation situated in a Member State, that act of communication to the public by satellite shall be deemed to have occurred in that Member State and the rights provided for under Chapter II shall be exercisable against the person operating the uplink station; or

18. (c) E. Derclaye 2003-201018 Art. 1.2.d – cont’d (ii) if there is no use of an uplink station situated in a Member State but a broadcasting organization established in a Member State has commissioned the act of communication to the public by satellite, that act shall be deemed to have occured in the Member State in which the broadcasting organization has its principal establishment in the Community and the rights provided for under Chapter II shall be exercisable against the broadcasting organization.”

19. (c) E. Derclaye 2003-201019 Cable retransmission – art. 9 “Exercise of the cable retransmission right 1. Member States shall ensure that the right of copyright owners and holders or related rights to grant or refuse authorization to a cable operator for a cable retransmission may be exercised only through a collecting society.

20. (c) E. Derclaye 2003-201020 Cable retransmission – art. 9 – cont’d 2. Where a rightholder has not transferred the management of his rights to a collecting society, the collecting society which manages rights of the same category shall be deemed to be mandated to manage his rights. Where more than one collecting society manages rights of that category, the rightholder shall be free to choose which of those collecting societies is deemed to be mandated to manage his rights. A rightholder referred to in this paragraph shall have the same rights and obligations resulting from the agreement between the cable operator and the collecting society which is deemed to be mandated to manage his rights as the rightholders who have mandated that collecting society and he shall be able to claim those rights within a period, to be fixed by the Member State concerned, which shall not be shorter than three years from the date of the cable retransmission which includes his work or other protected subject matter.”

21. Airfield et al v Agicoa Facts: Airfield, Belgian co, provides digital tv and radio by satellite (bouquets) of two types, free and paying (encrypted). It uses Canal Digitaal’s technical help to provide its services. They’re sued for infringing copyright for communicating works to Airfield’ customers without authorisation Judgment of 13/10/2011 E. Derclaye 201121

22. Airfield Airfield is the co responsible for the introduction act for the communication to the public by satellite to happen because it has the discretionary power to select the tv programmes which it wants to include in its bouquet and this is against remuneration. There is interruption of the signals – it is not a simple technical procedure as Airfield, with Canal Digitaal’s help, modifies the nature of the broadcasters’ signals and uses its own frequency to transmit them => it must obtain authorisation from the copyright owner E. Derclaye 201122

23. Airfield Question 2: Must the provider of satellite ‘bouquets’ obtain an authorisation from copyright owner when retransmitting tv channels directly as explained in the following: It is direct because the broadcasters encrypt signals themselves without A or CD. However the latter nevertheless give ‘instructions’ to the broadcasters A new public is also touched in this case and even if A intervenes less than in the previous case, it still must obtain an authorisation E. Derclaye 201123

24. (c) E. Derclaye 2003-201024 Term Directive (93/98), now codified Directive 2006/116/EC Extension to life + 70 years for economic rights Extension to 50 years for neighbouring rights Art. 2 – cinematographic and audiovisual works – death of last surviving (whether or not designated as co-authors) – Principal director – Author of screenplay – Author of dialogue – Composer of music Art. 4 – previously unpublished works – 25 years Art. 6 – photographs Directive 2011/77 amends the Term Directive and in essence gives 70 years term to sound recordings and performers’ rights