Law No 43 of December 30 1994 Related to Copyright in the Field of Intellectual Property



		Law No. 43 of December 30, 1994,



		Incorporating in Spanish Law Council Directive (EEC) No. 92/100 of November 19, 1992, on Rental Right and Lending Right and on Certain Rights Related to Copyright in the Field of Intellectual Property



		Title I Rental and Lending Rights



		(Subject Matter of Rental and Lending Rights)



		Art. 1.—



		(1) The provisions of this Title shall govern the right to authorize or prohibit the rental and lending of:



		(a) the originals and copies of works protected by copyright;



		(b) fixations of the performances of performers;



		(c) phonograms;



		(d) the first fixation of an audiovisual recording and copies thereof.



		Those rights shall not lapse in the case of sale or any other act of distribution of the originals and copies of the works and other material specified in the foregoing paragraph.



		This Law shall not include the rights of rental and lending of buildings or works of applied art.



		(2) For the purposes of this Law,



		(a) “rental” of objects means making them available for use for a limited time and for direct or indirect economic or commercial advantage;



		(b) “lending” of objects means making them available for use for a limited time and not for direct or indirect economic or commercial benefit, provided that the said lending takes place through the agency of establishments accessible to the public;



		It shall be understood that there is no direct or indirect economic or commercial benefit when the lending done through the agency of an establishment accessible to the public gives rise to the payment of a sum that does not exceed what is necessary to cover its operating expenses;

(c) “audiovisual recordings” means fixations of a scene or sequence of images, with or without sound, whether or not the creations in question are capable of being described as audiovisual works within the meaning of Article 86 of Law No. 22/1987 of November 11, 1987, on Intellectual Property.^{(3) For the purposes of this Title, the following ways of making objects available shall be excluded from the concepts of rental and lending:

— making phonograms or audiovisual recordings or fragments of either available for the purposes of communication to the public or broadcasting;

— making
available for consultation on the spot;

—
exclusively with regard to lending, the mutual making
available of objects by establishments accessible to the
public.

(Owners of the Rights of
Rental and Lending)

Art. 2.—

(1) The
exclusive right to authorize or prohibit rental and lending shall
belong:

(a)
to the author in respect of the original and copies of his
work;

(b)
to the performer in respect of fixations of his
performance;

(c)
to the phonogram producer in respect of his
phonograms;

(d)
to the producer of the first fixation of an audiovisual work
in respect of the original and copies of that recording.

(2) The
following shall be considered authors of an audiovisual recording
for the purposes of this Law:

(a)
the director or maker;

(b)
the authors of the plot, adaptation and scenario or
dialogue;

(c)
the authors of the musical compositions, with or without
words, specially created for the recording.

(3) Where
the authors and performers individually or collectively enter into
contracts with a producer of audiovisual recordings for the
production thereof, it shall be presumed that, unless otherwise
specified in the contract and subject to the unrenounceable right to
the equitable remuneration referred to in the following Article,
they have transferred their rental rights.

(Unrenounceable Right to
Equitable Remuneration)

Art. 3.—

(1) Where
an author or performer has transferred or assigned his rental right
in a phonogram or the original or a copy of a film to a phonogram or
film producer, he shall retain the unrenounceable right to equitable
remuneration therefor. Such remuneration may be collected from those
who carry out the operations of rental to the public of phonograms
or audiovisual recordings in their capacity as successors in title
of the owners of the corresponding right to authorize or prohibit
such rental and shall be payable as from
January 1, 1997.

(2) The
right provided for in this Article shall be asserted through
entities for the administration of intellectual property
rights.

(Exceptions to the Exclusive
Lending Right)

Art. 4.—

(1) No
authorization shall be required for lending by museums, archives,
libraries, newspaper libraries, record libraries or film libraries
in public ownership or which belong to public interest bodies of
cultural, scientific or educational character without gainful intent
or to teaching establishments incorporated in the Spanish
educational system.

(2) The
establishments specified in paragraph (1) of this Article
shall be exempted from the payment of any remuneration for
lending.

Title II
Related Rights

(Fixation Right)

Art. 5.—

(1)
Performers shall have the exclusive right to authorize or
prohibit the fixation of their performances.

(2)
Broadcasting entities shall have the exclusive right to
authorize or prohibit the fixation of their broadcasts, whether they
are transmitted by wire or by wireless means, including cable and
satellite.

Cable distribution entities
shall not enjoy this right when they retransmit the broadcasts of
broadcasting entities.

(Reproduction
Right)

Art. 6.—

(1) The
exclusive right to authorize or prohibit direct or indirect
reproduction shall belong to:

(a)
performers in respect of fixations of their
performances;

(b)
producers of phonograms in respect of their
phonograms;

(c)
producers of the first fixations of audiovisual recordings in
respect of the originals and copies thereof;

(d)
broadcasting entities in respect of fixations of their
broadcasts.

(2) The
reproduction rights referred to in paragraph (1) may be
transferred, assigned or made subject to the grant of contractual
licenses.

(Broadcasting and
Communication to the Public)

Art. 7.—

(1)
Performers shall have the exclusive right to authorize or
prohibit the broadcasting by wireless means and the communication to
the public of their performances, except where the performance is
itself already a broadcast or is made from a previously authorized
fixation.

(2) Users
of a phonogram published for commercial purposes, or of a
reproduction of such phonogram, which is used for wireless
broadcasting or any form of communication to the public shall be
under the obligation to pay a single equitable remuneration to the
performers and phonogram producers, among whom it shall be shared
out.

In the absence of agreement
between the performers and phonogram producers, the amount referred
to in the foregoing paragraph shall be shared out equally.

(3) On
signing a contract for the production of an audiovisual recording
between a performer and a producer of audiovisual recordings, the
performer authorizes the communication of his performance to the
public.

Without prejudice to the
foregoing, the performer shall retain the unrenounceable right to a
single equitable remuneration for the communication of his
performance to the public.

The users of audiovisual
recordings that are used for any form of communication to the public
shall be under the obligation to pay a single equitable remuneration
to the producers of audiovisual recordings and to the performers,
among whom it shall be shared out. In the absence of agreement
between them, the amount shall be shared out equally.

(4) The
right to the single equitable remuneration referred to in
paragraphs (2) and (3) of this Article shall be asserted
through the entities for the administration of intellectual property
rights.

(5)
Broadcasting entities shall enjoy the exclusive right to
authorize or prohibit the wireless retransmission of their
broadcasts, and the communication thereof to the public where such
communication is made in places to which the public have access
against payment of an admission fee.

(Distribution
Right)

Art. 8.—

(1) The
exclusive distribution right shall belong to:

(a)
performers in respect of fixations of their
performances;

(b)
phonogram producers in respect of their phonograms;

(c)
the producers of the first fixations of audiovisual recordings
in respect of the originals and copies thereof;

(d)
broadcasting entities in respect of fixations of their
broadcasts, whether transmitted by wire or wireless means, including
cable and satellite.

(2) The
distribution right relating to subject matter as provided for in
paragraph (1) shall not be exhausted in the European Union.
Such right shall only lapse when distribution takes place in the
form of sale in the European Union, namely on the first such sale
effected by the owner of the right or with his
consent.

The provision in the
foregoing paragraph shall be understood to be without prejudice to
the specific provisions of the in particular Title I,
second subparagraph>paragraph (1) of
Article 1.

(3) The
distribution right may be transferred, assigned or made subject to
the grant of contractual licenses.

(Limitations)

Art. 9.—

(1) The
limitations imposed for the protection of authors’ rights in
Chapter II of Title III of
Part I of the Law on Intellectual Property shall be applicable
to this Title.

(2) The
provisions of Article 25 of the said Law shall
be applicable to the limitation specified in Article 31(2) thereof.

Additional
Provisions

(Relations Between Copyright
and Related Rights)

One. The protection
of related rights under this Law shall not affect the protection of
copyright.

(Compensatory
Remuneration)

Two. Article No. 25 of Law No. 22 of
November 11, 1987, on Intellectual Property, as amended by
Law No. 20 of July 7, 1992, shall henceforth read as
follows:^{Transitional Provisions

(Term of
Rights)

One.—

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(1)
Until such time as the provisions contained in Council
Directive (EEC) No. 93/98 of October 29, 1993,
Harmonizing the Term of Protection of Copyright and Certain
Related Rights have been applied, the procedure provided for
in (3), below, shall be adhered to.

(2)
The authors’ rights provided for in this Law shall be
protected throughout the period provided for in Chapter I in Title III of
Part I of the Law on Intellectual Property.

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(3)
The rights of performers, phonogram producers, producers
of the first fixations of audiovisual recordings and
broadcasting organizations shall be protected for the period
provided for in Articles 106, 111, 115 and 117, respectively, of the Law on Intellectual
Property.

(Applicability of the
Law)

Two. The
provisions of this Law shall be understood to be without
prejudice to acts of exploitation engaged in and contracts
entered into prior to its entry into force.

(Application of
Equitable Remuneration to Contracts Entered Into Prior to
July 1, 1994)

Three. With
regard to contracts entered into prior to
July 1, 1994, the right to equitable remuneration
referred to in Article 3 of this Law shall apply only
if the authors or performers or their representatives have
filed a request to that end in accordance with the provisions
of the said Article 3 prior to
January 1, 1997.

(Calculation of
Compensatory Remuneration for Private Copying Between
January 1 and December 31, 1994)

Four. For the
calculation of the compensatory remuneration for private
copying relating to the period between January 1 and
December 31, 1994, the provisions of Law No. 20
of July 7, 1992, Amending Law No. 22 of
November 11, 1987, on Intellectual Property and
those of Royal Decree No. 1434 of
November 27, 1992, for the implementation thereof,
shall be applicable.

Repeal
Provision

(Repeal of
Provisions)

Sole Provision.
Such provisions, of whatever rank, as are contrary to this
Law, and especially Articles 9(1), 11, 12, 14, 16, 17, 18, 19 and 37(1), and also Chapters II and < III of Title II of Royal Decree
No. 1434 of November 27, 1992, are hereby
repealed.

Final
Provisions

(Safeguarding of the
Application of Other Legal Provisions)

One. The
provisions of this Law shall be understood as being without
prejudice to the provisions of Article 4(c) of
Law No. 16 of December 23, 1993, Incorporating
in Spanish Law Council Directive (EEC) No. 91/250 of
May 14, 1991, on the Legal Protection of Computer
Programs.

(Application of
Compensatory Remuneration for Private Copying in Ceuta and
Melilla)

Two. The
Government shall lay down by regulation a system for the
application of compensatory remuneration for private copying
that takes into account the special circumstances of the
markets of the cities of Ceuta and Melilla.

(Authorization to
Enact Complementary Provisions)

Three. The
Government is authorized to enact regulatory provisions that
lay down the procedure for the fixing of the amount of
equitable remuneration referred to in Transitional Provision
Three when no agreement has been reached on the subject
between the parties.

(Legislative Authority
Accorded to the Government)

Four. The
provisions of this Law shall be incorporated by the Government
in the revised text on intellectual property that it will have
to enact prior to June 30, 1995, by virtue of the
express authorization given in Final Provision Two of Law
No. 16 of December 23, 1993, Incorporating in
Spanish Law Council Directive (EEC) No. 91/250 of
May 14, 1991, on the Legal Protection of Computer
Programs.

(Entry Into Force of
the Law)

Five. This Law
shall enter into force on the day following that of its
publication in the Official Bulletin of the State.}}

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Law No 43 of December 30 1994 Related to Copyright in the Field of Intellectual Property