Case C-271/10

Vereniging van Educatieve en Wetenschappelijke Auteurs (VEWA)

v

Belgische Staat

(Reference for a preliminary ruling from the Raad van State)

(Directive 92/100/EEC – Copyright and related rights – Public lending – Remuneration of authors – Adequate income)

Summary of the Judgment

Approximation of laws – Copyright and related rights – Rental right and lending right on protected works – Directive 92/100 – Remuneration of authors in the event of public lending

(Council Directive 92/100, Art. 5(1))

Article 5(1) of Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of intellectual property precludes legislation, which establishes a system under which the remuneration payable to authors in the event of public lending is calculated exclusively according to the number of borrowers registered with public establishments, on the basis of a flat-rate amount fixed per borrower and per year.

Given that remuneration constitutes consideration for the harm caused to authors by reason of the use of their works without their authorisation, the determination of the amount of that remuneration cannot be completely dissociated from the elements which constitute that harm. As that harm is the result of public lending, that is to say, the making available of protected works by establishments accessible to the public, the amount of the remuneration due should take account of the extent to which those works are made available, both as regards the number of borrowers registered and the number of protected works made available by a public lending establishment.

(see paras 37-39, 43, operative part)