Copies of literary and artistic works

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When renting (i.e. transferring for use in return for payment) copies of literary and artistic works, the effect of Art. 13 CopA on the principle of exhaustion must be considered. According to the principle of exhaustion, the person who is granted ownership of the work by the author is also entitled to rent the work in return for payment. Pursuant to Art. 13 para. 1 CopA this person owes remuneration to the author if the rented work is a ‘copy of a literary or an artistic work’.

Only physical works can be literary and artistic works in this sense, i.e. works that can be physically rented to a third party (e.g. books, CDs, etc.) and which must be returned. Works that are made available online are not included.

In addition, the lessor must rent the work in return for a rental fee; loans are not included as a loan implies that no payment is due for the item that has been transferred. This is based on the principle that authors should share in the rental income, even if they have given up their ownership of the work. Authors cannot claim payment directly; they can only be remunerated through a licensed collective rights management organisation.

In practice, this rule is mainly relevant for libraries: libraries actually lend out books (i.e. ‘copies of literary and artistic works’) free-of-charge, but most libraries collect a membership or user fee. Does this qualify as ‘making something available for a fee’, i.e. does Art. 13 para. 1 CopA apply to libraries? Joint Tariff (JT) 6a, ‘Offering works for rent in libraries’ applies a better definition to the rental of copies of works by libraries. Annual membership fees, one-off registration fees and administration fees do not qualify as payment (cf. section 1.4 JT 6a). Thus, if libraries levy annual membership fees as payment, which is the case for many libraries, they do not have to remunerate the author pursuant to Art. 13 para. 1 CopA.