RENTAL RIGHT: NAUGHTY PORTUGAL, NAUGHTY COMMISSION

AG Sharpston has delivered her Opinion in the two cases brought by the Commission against Portugal, alleging failure to correctly implement Articles 2, 4 and 5 (read in conjunction with Article 1) of Council Directive 92/100 of 19 November 1992 on rental and lending rights and on certain rights relating to copyright in the field of intellectual property.

She advised the ECJ to rule as follows:

* In conferring rights on the producers of videograms, Portugal failed to grant exclusive rental rights to producers of the first 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 film producer or videogram producer was liable.

Sharpston killed the video star?

* Portugal excluded public, school or university libraries, all museums, all public archives, all public foundations and all private non-profit making institutions from paying the rental remuneration. This exclusion was too wide. Although Art.5(3) of the Directive allowed Member States to exempt ‘certain’ bodies from the obligation to pay the right, as an exemption, it had to be construed strictly. ‘Certain’ in this context meant some but not all, and an exemption from a liability which exempts all who would otherwise be liable is not an exemption but an annulment of the underlying obligation.

* Art.5 was validly implemented. Portugal’s argument that public lending did not have an effect on the internal market was rejected.

* The fact that authors had already received remuneration from the sale of their work did not remove the justification for their further remuneration through the public lending right.

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

"I would like to conclude with a comment on the style of the Commission’s written observations in both these cases. In its reply in each case, the Commission uses language which I regard as manifestly inappropriate for an institution addressing the Court of Justice and, in effect, a Member State. In Case C-53/05 the Commission states that Portugal could not read the Directive and accuses Portugal of an act of piracy in expropriating authors and confiscating their intellectual property. In Case C-61/05 the Commission accuses Portugal of effrontery and of ‘pulling a fast one’ and asks whether it knows how to read. In both documents the Commission uses a sarcastic and derisive tone generally. Whatever the rights and wrongs of the infringement action, I regard such language and tone as unacceptable".

The IPKat notes that the AG has delivered a policy-led opinion that draws heavily on the travaux and the reasons why these rights have been granted.