窗体顶端E.I.P.R. 1991, 13(4), 117-123European Intellectual Property Review1991Rental right, lending right and certain neighbouring rights: the EC Commissions proposal for a Council DirectiveSilke Von Lewinski 2012 Sweet & Maxwell and its ContributorsSubject:Intellectual property.Other Related Subject:European UnionKeywords:Copyright; EEC law; Rental rightsLegislation:Commission Directive on rental rights, lending rights and certain rights related to copyright (Draft)*117On 5 December 1990, the EC Commission adopted a proposal for a Council Directive on rental right, lending right, and certain rights related to copyright.1It represents the second proposal2based on the Green Paper on Copyright.3It combines two fields of activity: rental and lending on the one hand, based on the proposals of Chapter IV of the Green Paper (distribution right, exhaustion and rental right) which have been partially extended, and, on the other hand, certain rights related to copyright based on Chapter II (piracy). The Commission considers this combination to be appropriate because the harmonisation of a rental or lending right for certain owners of neighbouring rights does not seem reasonable, as long as there are still some Member States which do not provide any neighbouring rights protection at all, not even a simple reproduction right.4Since some Member States would have to introduce certain neighbouring rights according to this proposal, it seemed to be necessary to deal, in Chapter III of the proposed Directive, with the duration of rights. The Commission held a Hearing for interested circles on all of these issues on 18 and 19 September 1989 in Brussels.Besides the preamble and the 13 proposed Articles,5the EC Commissions document includes in its 68 pages the explanatory memorandum, which covers in its Part 1 (General) considerations on the purpose of the proposed Directive as well as the need for harmonisation at the Community level, the concept of harmonisation and the legal basis. Part 2 (Particular Provisions) contains detailed annotations on the Articles. In Part 1, a comprehensive analysis of the existing protection both in the Member States and according to international law leads to the Commissions conclusion that there is a need for action at the Community level. It bases the proposal on Article 100A of the EEC Treaty6and, as far as the provision of services and the pursuit of activities by self-employed persons are concerned, on Articles 57(2) and 66 of the EEC Treaty.The Commissions Principles of Harmonisation: The Main ExamplesFundamental ideas of the Commission in generalThe manner in which the whole text of the explanatory memorandum was drafted reflects the Commissions positive attitude towards the need for adequate legal protection in the field of copyright and neighbouring rights. Thus, although copyright places its owner in a monopoly position, it is not principally regarded as a barrier to trade which would have to be eliminated. Moreover, the Commission stresses the need to harmonise laws at a high standard of protection within the Community in order to avoid further negative effects of insufficient protection and to secure the economic basis for continuing creation and investments in European culture, the identity and variety of which has to be maintained.7Comprehensive approachOne of the main points of criticism brought against the Green Paper was its supposed lack of adequate conceptual framework and of coherence. This criticism cannot be maintained with respect to the present proposal. The following examples will show how the Commission arrived at a harmonisation proposal which takes into account the structure of copyright systems.DurationChapter III of the proposal includes only a preliminary harmonisation of the duration of authors and related rights. The Commission thereby decided to take a comprehensive approach, namely to provide for the harmonisation of all terms of protection in a separate proposal8but*118not within the framework of the present proposal which covers only the harmonisation of particular rights. Thus, the Commission took into account that different terms of protection are always connected to the respective subject-matter protected, not to rights. Furthermore, the balance between the duration of authors rights and of neighbouring rights may be best regarded in the context of one single proposal.Lending rightThe Commission decided, contrary to the proposal of the Green Paper, to include a lending right in its proposal for a Directive. On the one hand, this was due to the outcome of the Hearing and, on the other hand, to a number of valuable arguments such as, for example, the economic connections between rental and lending9and the fact that fundamental copyright arguments are valid for a lending right as well as for rental rights.10In order to present a realistic proposal, the Commission provided for possibilities