On 16 June 2022 the draft law was passed in Belgian Parliament - The Law has been published in the Official State Gazette on 1 August 2022 and entered into force on that same day.
Law of 19 June 2022 transposing Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the digital single market and amending Directives 96/9/EC and 2001/29/EC
1 August 2022
Amendments to existing law, i.e. the Code of Economic Law.
On most points, the Implementation Act remains close to the wording of the Copyright Directive. However, the Belgian legislator went beyond the provisions of the Directive as it introduced a non-waivable remuneration right for rightholders if their work is used on content-sharing platforms (i.e. in the context of Article 17 of the Directive), as well as on streaming platforms. Furthermore, the Implementation Act also contains a chapter on new summary proceedings to combat online copyright infringements.
The Implementation Act introduces Art, XI. 190,20° and Art. XI.191/1, §1, 7° into the Code of Economic Law ("CEL") in order to implement articles 4 and 3 (resp.) of the DSM Directive. Article XI.190, 20° transposes Article 4 of the DSM Directive, and provides that text-and data mining is allowed if the user had legitimate access to the works and insofar the rightholder did not reserve his rights. The Belgian implementation act explicitly provides that in respect of content made available online, the reservation of rights is only considered appropriate if machine readable measures are used. Article XI.191/1, §1, 7° transposes Article 3 of the DSM Directive, and grants an exception to research organisations, publicly accessible libraries, publicly accessible museums, archives or film or audio-visual heritage institutions to perform text and data mining for scientific purposes, on databases to which they have lawful access. The reproductions must be stored with an appropriate level of security and may be retained for the purposes of scientific research, including for the verification of research results.
Articles XI. 216/1, XI. 216/2 and XI.216/3 CEL transpose Article 15 of the DSM Directive. Art. XI. 216/1 CEL provides for the definitions of "press publisher" and "information society service provider". Article XI. 216/2, §1 provides for the exclusive right to making available to the public and the right to reproduction of press publishers for the online use of their press publications by information society service providers, Art. 216/2 §2 CEL departs from the text of Article 15 DSM Directive as it provides for an obligation for press publishers and information society service providers to negotiate in good faith on "the exploitation and the remuneration due in that respect". Furthermore, it provides that parties may launch proceedings before a regulatory body, the Belgian Institute for Telecommunications and Postal Services (the "BIPT"), in case no negotiated solution is reached in four months. The BIPT can then decide on the remuneration due for the online exploitation of the press publications in an administrative binding decision. Appeal to this decision is possible before the Market Court. Art. XI. 216/2, §3 introduces then an information obligation for information society service providers. They must, within 1 month from the request of press publishers, provide all "up-to-date, relevant and complete information on the exploitation of the press publications", so that press publishers are able to assess the value of their publications. Such information may be the number of consultations of the publication and the revenue generated by the use of the press publication. The provision indicates that this info must be treated as confidential. Art. XI. 216/2, §4 provides the exceptions to the press publishers' right (such as the "very short extracts"). Art. 216/2, §5 CEL introduces a statutory presumption that one should consider that whose name or acronym appears on a press publication, must be considered a "press publisher" for the purposes of this provision. Art. 216/2, §6 provides that authors must receive an appropriate share of the remuneration of press publishers. The right to remuneration of authors or other rightholders is non-transferable and is subject to mandatory collective rights management. Art. 216/2, §7 provides a similar information obligation for press publishers, that must provide authors/rightholders of all relevant, up-to-date and complete information on the remuneration they received from information society service providers. Art. 216/2, §8 provides that in case authors and press publishers do not reach an agreement on the "appropriate share", that they can revert to a special commission, chaired by a representative of the Minister and composed of representative of both press publishers and rightholders. This commission can then determine the appropriate share for rightholders. The exact modalities for this commission will be further determined by a Royal Decree. Parties can however only turn to this commission if they can demonstrate that they have entered into a mediation as described in Articles 1724 to 1737 of the Judicial Code. Art. XI. 216/3 provides that the press publishers' right has a duration of 2 years from its first publication.
Articles XI.228/2 to XI.228/9 CEL transpose Article 17 of the DSM Directive. Art. XI. 228/2 introduces the definition of online content-sharing service provider into Belgian Law. Art. 228/3 provides for the principle that OCSSPs carry out an act of communication to the public if their users make an upload of protected content to their platform, and that they thus must obtain the authorization of the rightholder for the use of their works. Importantly, Art. XI.228/4 introduces a non-waivable and non-transferable remuneration right for authors and performers in case they have transferred their right to communication to the public by an OCSSP. This provision thus goes beyond the DSM Directive. This remuneration right is subject to mandatory collective rights management. In practice, OCSSPs will thus be required to remunerate authors and performers that have transferred their rights to a third party, in case their works are being used on the OCSSPs' platform. The mandatory remuneration right is subject to critique, as the services of the Commission had already warned that this provision infringes the DSM Directive. Stakeholders also fear that this legislative change is not apt to the specificities of the sectors involved (music, film, ...). The remainder of the transposition provisions does follow the wording of Article 17 of the DSM Directive. Art. XI. 228/5 provides the revised liability regime for OCSSPs and the rules for small platforms. Art. XI.228/6 transposes Art. 17§7 of the DSM Directive and thus provides that users should still benefit from the exceptions and limitations to copyright and neighbouring rights. Art. XI.228/7 transposes the information obligation for OCSSPs into Belgian Law. Articles XI. 228/8 and XI. 228/9 then provide for the complaint and redress mechanism and the out-of-court redress mechanisms that need to be made available for users of the OCSSPs' platform. The Belgian legislator opted for a mediation mechanism, subject to the rules set out in Art. 1726 of the Judicial Code. OCSSPs must appoint 2 mediators in their terms and conditions that should deal with disputes on the deletion or unavailability of uploaded content.
Certain obligations of chapter 3 (such as the transparency obligation, the success-clause and the revocation right) already pre-existed in Belgium with respect to specific exploitation contracts (e.g. editing contracts). Therefore, the transposition of these articles of the DSM Directive mainly consited in 'generalising' these principles to all types of exploitation contracts. Furthermore, the Belgian legislator did not explicitly transpose Article 21 of the Directive, as it was not considered necessary since the Judicial Code already provides for alternative dispute resolution mechanisms such as arbitrage, mediation and collaborative negotiations.
Articles 167/1 CEL and 205/1 CEL transpose Article 18 of the DSM Directive, respectively for authors and holders of neighbouring rights.
Articles XI. 167/2 and XI. 205/2 CEL transpose Article 19 of the DSM Directive, respectively for authors and neighbouring rightholders. This obligation already entered into force (retroactively) on 7 June 2022.
The Belgian legislator has introduced in Articles XI. 228/10 and Art. XI. 228/11 a right to remuneration for authors and performers of audiovisual works in case they have assigned their right to authorize the communication to the public of their work by a streaming service, to a producer. The right to remuneration is non-transferable and non-waivable by the authors or performers, and is subject to mandatory collective right management. The legislator thus made a parallel with the remuneration right introduced for rightholders if their works are used by OCSSPs. Streaming services and remuneration rights for rightholders are however not covered by the DSM Directive.