By the Law of 19 June 2022, Belgium transposed European Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, also known as the “DSM Directive”.
Adopted on 17 April 2019, the DSM Directive aims to modernize existing copyright laws and to adapt them to today’s digital society. As explained in a previous news text, the key innovations of the DSM Directive are:
- The adoption of additional limitations to the exclusive rights of rights holders;
- The introduction of a new licensing mechanism for out-of-commerce works;
- The creation of a new press publishers right;
- The introduction of a new liability regime for online content-sharing service providers;
- The adoption of new rules to ensure a fair remuneration in exploitation contracts of au-thors and performers.
Member States had to transpose the Directive into their national legislation by 7 June 2021, which means that the Belgian transposition took place with more than a year of delay.
Most of the provisions were transposed into the Belgian Code of Economic Law (hereinafter “CEL”), and more precisely in Books I, XI and XVII. However, some provisions were introduced into the Belgian Judicial Code, in the Law of 17 January 2003 on the status of the regulator of the Belgian postal and telecommunications sectors and in the Law of 17 January 2003 concerning appeals and the handling of disputes in connection with the aforementioned Law of 17 January 2003.
The Law of 19 June 2022 states:
- four new mandatory exceptions to copyright and related rights: text and data mining for scientific research purposes (Articles XI.191/1, XI.191/2, XI.217/1 and XI.310 CEL, transposing Article 3 of the DSM Directive), text and data mining for other purposes (Articles XI.190, XI.191, XI.217, XI.299 and XI.310 CEL, transposing Article 4 of the Directive), the digital use of works for teaching purposes (Articles XI.191/1, XI.191/2, XI.217/1, XI.240, XI.299 and XI.310 CEL, transposing Article 5 of the Directive) and reproductions for the purpose of the preservation of cultural heritage (Articles XI.191/1, XI.191/2, XI.217/1, XI.240, XI.299 and XI.310 CEL, transposing Article 6 of the Directive);
- a new licensing mechanism for out-of-commerce works, making it easier for cultural heritage institutions to make such works available to the public (Articles XI.218/2 and XI.245/7/2 to XI.245/7/6 CEL, transposing articles 8 to 10 of the Directive);
- a new neighbouring right for press publishers for the online use of their publications by information society service providers (Articles XI.216/2, XI.216/3, XI.217, XI.217/1, XI.218/1 and XI.245/7 CEL, transposing article 15 of the Directive);
- new rules for sharing protected content by online content-sharing service providers such as YouTube (Articles XI.228/3 and XI.228/5 to XI.228/9 CEL, transposing article 17 of the Directive);
- and measures ensuring an appropriate and fair remuneration for authors and performers in exploitation contracts, including a transparency obligation and contract adjustment mechanism (XI.167/2 to XI.167/5, XI.205/2 to XI.205/5 and XI.228/10 to XI.228/11 CEL, transposing articles 19 to 22 of the Directive).
In addition, the Belgian legislator adopted a new procedure to strengthen the fight against mass online infringements on copyrights, related rights or database rights. It concerns a specific summary proceeding before the president of the Brussels Enterprise Court, which can impose preliminary measures in the event of clear and substantial infringements committed online (Articles XVII.34/1, XVII.34/2, XVII.34/4 and XVII.34/5 CEL).
To conclude, the creation of a specific service within the FPS Economy is introduced in the Code of Economic Law. Once instituted, this “service for the fight against online infringements of copyright and related rights” will be competent, among other things, to advise on and further specify the preliminary measures imposed in the context of the aforementioned summary proceedings in order to ensure the effectiveness of these measures, or to request the president of the Enterprise Court to withdraw or modify them. The service will also establish a list of websites that are subject to preliminary measures and can establish an indicative list of websites that lawfully make protected works available to the public (Article XVII.34/3 CEL).
The Law of 19 June 2022 was published in the Belgian Official Gazette on 1 August 2022 and (for the most part) entered into force on that date.
Please contact Karel Janssens for further information on the above and/or for general legal advice relating to copyright law and intellectual property.