ECJ FINDS BELGIANS REMISS IN INCORPORATION OF PUBLIC LENDING DIRECTIVE

Last week, the ECJ found that Belgium had failed to fulfil its obligations under Articles 1 and 5 of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property . Article 1 requires Member States to recognise that authors have the exclusive right to authorise the public lending of various copyright works. However, Article 5 allows for a derogation from this exclusive right, but only if a remuneration is made to the author. The EU Member States were meant to have implemented the Directive into their national laws by 1 July 1994. The exclusive lending right was recognised under Belgian law but a derogation was created under Article 23 of the Belgian Loi relative au droit d'auteur et aux droits voisins for “lending [that] is organised for an educational and cultural purpose by institutions recognised or organised officially for that purpose by the public authorities”. Article 62 of the law envisaged authors being remunerated in those circumstance and Article 63 stated that the King would fix the relevant amount by decree. However, no such decree was ever issued and so no rate of remuneration was fixed for derogation cases because, according to Belgium, of opposition to the lending right by the Belgian federated entities, which are responsible for cultural matters in Belgium and the European Commission brought this action.

Belgium had argued that Articles 1 and 5 of the Directive were not precise enough to be incorporated into its national law but the ECJ was not impressed, finding that where directive obligations are unclear, states must determine the relevant criteria in their own territory rather than just completely refusing to implement what is called for by the directive. Here also the Directive authorised Member States to exempt certain categories of undertaking from paying but did not require them to do so. In so far as it was unclear which undertakings this authorisation applied to, the states should have just not exempted any undertakings rather than completely failing to implement. The fact that, according to the Belgians, no remuneration was paid in France, Greece, Luxembourg and probably other Member States was irrelevant because a state cannot justify its failure to perform its obligations under ECJ law by pointing to similar failings on the part of other Member States. The hostility of the federated entities provided no excuse because a Member State rely on provisions, practices or circumstance in its internal legal order to justify failure to comply with obligations and time-limits laid down by a directive.

The IPKat is broadly in favour of this decision. The ECJ’s approach advocates requires states to make a sensible attempt to work through any interpretational problems in directives, rather than just ignoring the issue and using the uncertainty to justify a state of legislative paralysis. The IPKat also welcomes the ECJ’s failure to let the Belgian Government deflect from its own shortcoming by highlighting internal regional problems and failings on the part of other states, although he notes that a failure by more than one Member State to implement legislation may suggest that there are drafting or other problems with the legislation making it difficult to implement.

Do some public lending of your own here
Find out how to borrow from Belgians here, here and here