Rental Right: Naughty Portugal, Naughty Commission

AG Sharpston has delivered her Opinion inwards the ii cases brought yesteryear the Commission against Portugal, alleging failure to correctly implement Articles 2, iv together with five (read inwards conjunction amongst Article 1) of Council Directive 92/100 of xix Nov 1992 on rental together with lending rights together with on certainly rights relating to copyright inwards the champaign of intellectual property.

She advised the ECJ to dominion every bit follows:

* In conferring rights on the producers of videograms, Portugal failed to grant exclusive rental rights to producers of the outset fixation of a film. This infringed Art.2 of the Directive.

* The Portuguese legislation was insufficiently precise concerning who was obliged to pay the rental remuneration. It was ambiguous whether it the cinema producer or videogram producer was liable.

Sharpston killed the video star?

* Portugal excluded public, schoolhouse or academy libraries, all museums, all populace archives, all populace foundations together with all soul non-profit making institutions from paying the rental remuneration. This exclusion was likewise wide. Although Art.5(3) of the Directive allowed Member United States of America to exempt ‘certain’ bodies from the obligation to pay the right, every bit an exemption, it had to last construed strictly. ‘Certain’ inwards this context meant unopen to but non all, together with an exemption from a liability which exempts all who would otherwise last liable is non an exemption but an annulment of the underlying obligation.

* Art.5 was validly implemented. Portugal’s declaration that populace lending did non cause got an lawsuit on the internal marketplace was rejected.

* The fact that authors had already received remuneration from the sale of their function did non take the justification for their farther remuneration through the populace lending right.

The AG also rapped the Commission over the knuckles, saying:

"I would similar to conclude amongst a comment on the manner of the Commission’s written observations inwards both these cases. In its respond inwards each case, the Commission uses linguistic communication which I see every bit apparently inappropriate for an establishment addressing the Court of Justice and, inwards effect, a Member State. In Case C-53/05 the Commission states that Portugal could non read the Directive together with accuses Portugal of an human activity of piracy inwards expropriating authors together with confiscating their intellectual property. In Case C-61/05 the Commission accuses Portugal of effrontery together with of ‘pulling a fast one’ together with asks whether it knows how to read. In both documents the Commission uses a sarcastic together with derisive tone generally. Whatever the rights together with wrongs of the infringement action, I see such linguistic communication together with tone every bit unacceptable".

notes that the AG has delivered a policy-led thought that draws heavily on the travaux together with the reasons why these rights cause got been granted.