On 24 June 2004, Sabam, the Belgian collecting society of authors, composers and publishers, initiated summary proceedings before the President of the Court of First Instance in Brussels against S.A. Tiscali, a Belgian internet access provider with a market share of only 4%.
In its writ of summons, Sabam claimed that subscribers of the internet access services offered by Tiscali, were using various peer-to-peer software tools available on the internet (such as Kazaa, Morpheus, eDonkey2000, etc) in order to exchange electronic files (containing copyright protected music works, films, texts, etc) via decentralised computers of other internet users using a similar software tool.
The copying and exchange of such files had mostly taken place without the prior authorisation and payment of due royalties to the rights holding parties. According to Sabam, this led to an infringement of the exclusive rights of reproduction and right to communication to the public by the concerned rights holders. According to Sabam, Tiscali must have been aware of the overall peer-to-peer problem since the use of its internet services and its profits increased considerably.
Therefore, Sabam requested a cease and desist order against Tiscali, in order to stop these infringements on the basis of section 87, § 1 of the Belgian Copyright Act of 30 June 1994.
Opinion of the court’s President
In its intermediary decision in summary proceedings of 26 November 2004, the President of the Court of First Instance in Brussels accepted that he had jurisdiction to decide on the claim against Tiscali, even if the alleged copyright infringements were committed by the internet subscribers and not by Tiscali. This jurisdiction was ratione materiae based on section 87, § 1 of the Belgian Copyright Act which grants the President jurisdiction to establish the existence of an infringement and to order the cessation of any infringement to a copyright or a similar right.
Furthermore, the President accepted that Sabam had a proper legal interest for its claim against Tiscali, even when the latter was not the infringing party but the best placed party to efficiently stop the infringements. At the time of its decision, however, Belgium had not yet adopted any legislation implementing the EU Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights of the information society, even though the implementation deadline had already passed on 22 December 2002. Nevertheless, in accordance with the EU and national case law, the President accepted that Sabam’s interpretation was in line with recital 59 and section 8.3 of the Directive. These provisions entitle rights holders to directly request a cease and desist order against any intermediary service provider whose services are used by a third party to commit a copyright infringement, insofar as the service provider transmits such infringement on a network. The President confirmed that these provisions not only concern providers of hosting services but also access providers.
For imposing the cease and desist order, the President confirmed that Sabam did not have to evidence any fault or negligence by Tiscali, since it is sufficient that the existence of the copyright infringement is established. In this respect, Tiscali cannot fall back on the more lenient liability rules as set out in the Belgian E-commerce Act of 11 March 2003.
Although the President held that Sabam's rights were being infringed, the President did not impose a general cease and desist order, as the use of peer-to-peer software cannot be prohibited as such; it can be used for legal purposes, e.g. files not protected by any copyright or similar right.
Whilst Sabam alleged that the blocking or filtering of illegal downloads and exchange via peer-to-peer software is technically feasible, Tiscali contested this on the basis of a unilateral expert report. As a result, before giving a final decision, the President appointed a court expert to investigate the possible technical measures and costs to block or filter illegal file exchanges.
Even though an internet access provider can, from a legal point of view, be ordered to cease a copyright infringement committed by a third party user, it remains to be seen whether in the expert’s view, and taking into account existing technologies, an internet access provider is reasonably able to apply technical measures to block or filter illegal file exchanges without incurring disproportionate costs.
If the expert confirms the feasibility of these technical measures, it is likely that Tiscali will appeal against the final decision.
It seems that the combat against illegal peer-to-peer exchanges in Belgium has just started! This Tiscali case sits alongside another recent case in which an individual who downloaded numerous copyright protected files via peer-to-peer exchanges has been sentenced to a conditional imprisonment and to payment of severe financial damages to Sabam and IFPI.
 President of the Court of First Instance in Brussels, 26 November 2004, published on http://www.droit-technologie.org/jurisprudences
 Court of First Instance in Brussels (criminal division), 28 April 2003 and 25 October 2004, published on