Unión Europea
Derecho de autor y derechos conexos
9. Articles 11 and 14(4) of the TRIPS Agreement require that authors have the right to authorize or to prohibit the commercial rental to the public of computer programs and phonograms. Pursuant to the Copyright Act, an arrangement will not constitute a rental of a computer program or phonogram unless "it is entered into with motive of gain in relation to the overall operations of the person who rents out the computer program". Accepting that the term "motive of gain" may not be restricted to circumstances where the motive of gain is the main or the only motive, why are commercial rentals other than those with a motive of gain excluded from the exclusive rental rights granted to authors of computer programs and phonograms?
TRIPS, Article 11, applies to the "commercial rental" of computer programs and TRIPS, Article 14(4) to the "commercial rental" of phonograms. With respect to both computer programs and phonograms, the Canadian Copyright Act provides an exclusive rental right which applies subject to certain criteria implementing the TRIPS reference to the qualification "commercial". This word is in part translated by the Canadian reliance on the yardstick of "motive of gain". In practical terms, it is difficult to conceive of a commercial rental where there is no motive of gain. Accordingly, the Canadian formula meets the requirements of TRIPS, Articles 11 and 14(4).