04-07-2022

The European Directive of 17 April 2019 on Copyright and Related Rights in the Digital Market (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), the so-called DSM (Digital Single Market) Directive, had to be transposed into national law on 7 June 2021.

Belgium was one but not the only bad pupil in the class.

Belgium implemented the directive in the "Bill to transpose 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", adopted by the Federal Parliament on 16 June 2022.

It has thus taken three years to transpose the Directive of April 2019 into Belgian law. The law has not been published yet, but the publication will not be long in coming.

What does this mean in practice?

The Act contains many topics, such as:

- exceptions to copyright and related rights for text and data mining;

- exceptions to copyright and neighbouring rights for education in an electronic environment;

- provisions for the exploitation by museums, libraries and archives of works that are no longer available on the market;

- a new neighbouring right for press publishers;

- provisions on the sharing of protected content by online services;

- provisions on contract law for authors and performers.

So, in fact

a. new mandatory exceptions, inspired by the emergence of digital technologies for research, education, innovation and the preservation of cultural heritage, for which no exceptions existed before.

b. increased public access to protected content that is no longer available on the market

c. improving the position of right holders, in particular

° the press publishers through a new neighbouring right

° authors and performers, by means of new provisions on contract law

° users, via new provisions regarding the sharing of protected content (user generated content) by online services

We will only discuss point c., for questions regarding all points, you are of course always welcome to contact the Astrea IP team at ip@astrealaw.be.

A new neighbouring right for press publishers

The Act introduces a new neighbouring right for press publishers. This right regulates the granting by press publishers of licences for the online use of their publications, including through a compensation for their investments.

For each online use (reproduction and making available to the public), the service providers in the information society such as Google, Yahoo and others, not the individual user, will have to obtain the consent of the press publishers by means of licence agreements. The press publishers do not have to hold the copyright themselves for this. The duration of this new right is limited to two years.

Because the (large) service providers referred to sometimes make it difficult for the press publishers to negotiate licences and therefore licence fees, the Act provides for an arbitration procedure that can be conducted at the BIPT (Belgian Institute for Pot and Telecommunications). The arbitration decision can be appealed to the Market Court at the Brussels Court of Appeal.

Finally, it should be noted that the Act also provides that authors of works included in a press publication are entitled to a remuneration, i.e. a share of the income received by the press publishers for the use of their publications by information society service providers.

Measures to ensure appropriate and fair remuneration for authors and performers (actors, singers, musicians, etc.)

These measures include the following:

- an obligation on producers and publishers to be transparent with authors and performers with regard to exploitation and the resulting income;

- a success fee system for authors and performers where the originally agreed remuneration is too low compared to the unforeseen success of the exploitation;

- a right of withdrawal for authors and performers, i.e. the possibility of recovering their rights if their works and performances are not exploited;

- an extra-judicial settlement of disputes.

New rules on sharing protected content

- The providers of an online service such as Facebook, Youtube, Tiktok, ... must obtain permission from the rightholders when they provide the public with access to copyrighted works or other protected materials uploaded by their users (user generated content or UGC). Without the authorisation of the rightholders, the providers are therefore liable for the unauthorised communication to the public, unless they can prove that they have made every effort to obtain the necessary permission. The rightholders will be entitled to compensation.

- The law provides that rightholders can demand the removal of content online and provides for a new summary procedure to combat online infringements. Service providers will have to take concrete measures to remove content.

The draft law that was approved can be found here.

It is now awaiting publication.

For additional information on the new law, please contact Christine De Keersmaeker (cdk@astrealaw.be), Thaissa Nuyens (tnu@astrealaw.be), Levi Van Dijck (lvd@astralaw.be), Yuki Choy (ych@astrealaw.be) and Katrijn Huon (khu@astrealaw.be).