The "rental and lending" Directive

Directive 92/100 of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field intellectual property => Download PDF file ...

This Directive establishes a minimum level of protection for the benefit of related rights holders. It lays down the principle of an exclusive right “to authorize or prohibit” for performers, phonogram producers, producers of first fixations of films and broadcasting organisations.

The exclusive rights granted in the rental and lending Directive to performers are the rights to authorize or prohibit:

the fixation of their performance (Article 6)
the direct or indirect reproduction of fixations of their performances (Article 7)
the broadcasting and communication to the public of live performances (Article 8)
the distribution of fixations of their performances (Article 9)
the rental and lending of fixations of their performances (Article 2)

Moreover, the Directive gives performers and producers the formal assurance that they will receive from the users an equitable remuneration for the broadcasting and communication to the public of phonograms published for commercial purposes (Article 8, 2).

This provision is similar to the provision contained in Article 12 of the Rome Convention, with however the guarantee that performers as well as producers will benefit from a part of the remuneration.

The generally applied principle of a fifty-fifty share between performers and producers is however not imposed which is regrettable.  

On the other hand, there is a lack of protection for the broadcasting and communication to the public of fixations which are not phonograms published for commercial purposes.

A phonogram which is not published, for example, an original soundtrack of a film, is not covered by the protection granted by the Directive when broadcast or communicated to the public, neither by a remuneration right nor by an exclusive right.

In the same way, the broadcasting or the communication to the public of an audiovisual fixation (the broadcasting of a film on a TV channel for example) is not submitted to any right for the benefit of the performers.

Concerning film productions, the Directive provides a system of presumptions of transfer of rights.

Article 2, 5 of the Directive, provides with regard to the rental right that “when a contract concerning film production is concluded, individually or collectively, by performers with a film producer, the performer shall be presumed, subject to contractual clauses to the contrary, to have transferred its rental right.” (the performer then keeps the benefit of a remuneration right provided for in Article 4 and which cannot be waived).

It will of course be very difficult for a performer to impose on an audiovisual producer a contractual clause opposing such a transfer. The audiovisual industry has a privileged position in this domain which is hardly justifiable as far as performers are concerned.

Moreover, Article 2,7 goes even further as it lays down that “Member States may provide that the signing  of a contract  concluded between a performer and a film producer concerning the production of a film has the effect of authorizing rental, provided that such contract provides for an equitable remuneration within the meaning of Article 4. Member states may also provide that this paragraph shall apply mutatis mutandis to the rights included in Chapter II”.

The rights included in chapter II are precisely the exclusive rights granted to performers. This means that a Member State may lay down that in the audiovisual domain, when a contract provides for an equitable remuneration for these exploitations, the conclusion of this contract between the performer and the producer implies the transfer of the rights of the performer.

The economic imbalance between the vast majority of performers and the film producers is clear and yet reinforced by this disposition.