Verplichte vergoeding
Conclusie AG Sharpston, HvJ EG 29 juni 2006, zaak C-36/05. Commissie tegen Spanje. (Nog geen Nederlandse vertaling beschikbaar).
Verhuur en uitleenrechten. AG Sharpston is of the view that the Court should rule that the Kingdom of Spain has failed to fulfil its obligations under Articles 1 and 5 of the Directive on rental and lending rights and on certain rights relating to copyright in the field of intellectual property.
“In my view, however, the obligation to remunerate authors imposed by the first sentence of Article 5(1) of the Directive would be meaningless if, pursuant to the second sentence, Member States could set that remuneration at nil. The second sentence of Article 5(1) permits Member States to modify the level of the remuneration required by the first sentence ‘taking account’ of their cultural promotion objectives. It does not, however, authorise them to set a ‘zero’ remuneration. The concept of remuneration implies that the payments received by authors must be adequate compensation for their creative efforts.
Similarly, if the Member States could fix nil remuneration for all categories of lending establishments, it would have been pointless to stipulate in Article 5(3) that they could exempt only ‘certain’ establishments from the obligation to pay remuneration. Although Article 5(3) leaves the Member States a broad margin of discretion, the discretion is to determine the categories of establishments to be exempted. As discussed above, those categories cannot comprise effectively all establishments that are potentially liable."
Lees de volledige conclusie hier.
