C-36/05P

Commission of the European Communities v the Kingdom of Spain

An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 31 January 2005 by the Commission of the European Communities, represented by Ramόn Vidal and Wouter Wils of its Legal Service.

The Commission claims that the Court should:

• declare that, by exempting lending by almost all, if not all, categories of establishments from the obligation to pay a remuneration to authors for the public lending of works protected by copyright, the Kingdom of Spain has 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;
• order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Article 1 of Directive 92/100/EEC imposes a duty on Member States to accord authors the exclusive right to authorise or prohibit the lending of his works. Article 5(1) of the Directive provides that the Member States may derogate from that exclusive right, provided that authors at least obtain a remuneration for unauthorised lending. In accordance with Article 5(3) of the Directive, Member States may 'exempt' from payment of that remuneration only 'certain categories of establishments'.

Articles 17 and 19 of the Ley de Propriedad Intelectual (Law on Intellectual Property) ('LPI') recognise, in principal, the exclusive right of authors to authorise lending of their works. However, Article 37.2 of the LPI renders that right meaningless, by exempting practically every, if not all lending from the obligation to obtain the authors’ prior authorisation and the obligation to pay a remuneration. On those grounds, the Commission takes the view that Article 37.2 of the LPI is contrary to the Kingdom of Spain's obligations under Articles 1, 5(1) and 5(3) of the Directive.