The brand new Belgian Act (finally) transposing the EU copyright Directive entered into force

By the Act of 19 June 2022, Belgium transposed the Directive (EU) 2019/790 into Belgian law, hereby ushering in a number of changes. It entered into force on 1 August 2022. Member States initially had until 7 June 2021 for the transposition.

The aim of the Directive is to ensure the EU to keep a leading position in the global digital economy by promoting innovation, creativity, investment and production of new content. Here are some of the key innovations of the Act.

New exceptions and limitations to copyright

One of the new exceptions includes the right for research organizations and cultural heritage institutions to carry out text and data mining of works for the purposes of scientific research. The Act also allows text and data mining for private purposes. 

This exception aims at promoting the development of artificial intelligence and machine learning in the EU. It also puts an end to legal uncertainty to which research organizations were confronted with as before the Act, the rightholders’ authorization was needed to perform text and data mining. This was not adapted to the use of technologies and could undermine the EU’s competitive position in scientific research. Important to note: under certain conditions, research organizations should also benefit from the exception when their research activities are carried out in the framework of public-private partnerships. 

A right for press-publishers

The Act introduces a new “related-right” in favor of EU-based press publishers for the online use of their press publications by information society service providers. This new regime gives publishers the right to authorize the use of their press publications online (e.g. news appearing on Google) and to receive a fair part of the revenues deriving from such use. This right takes into account the massive aggregation and use of press publications by information society service providers that made it more difficult for publishers to recoup their investments in press publications.

New liability regime for online content-sharing service providers

Online content-sharing service providers such as Youtube, TikTok or Instagram generate massive revenues when copyright-protected content is uploaded on such platforms by their users without prior authorization from rightholders.

The new Act clarifies that these platforms perform an act of communication to the public when giving access to works uploaded by their users. In other words, they must obtain an authorization from rightholders and give appropriate share of the revenues. If no authorization is granted, the regime provides that platforms shall be liable, except if cumulative conditions are fulfilled, i.e. they made best efforts to obtain an authorization, to ensure the unavailability of protected works and put in place a specific notice-and-take-down mechanism. 

Rules are relaxed for small platforms and starts-ups, available on the market for less than three years and with an annual turnover of less than EUR 10M (provided the number of monthly visitors does not exceed 5M).

Contracts of authors and performers

Last but not least: the Act strengthens the contractual position of authors and performers (actors, musicians, singers, etc.) when concluding contracts regarding the exploitation of their works. Authors and performers tend to be in a weaker contractual position than publishers or producers, notably in the music, audiovisual and publishing sectors. 

The Act now requires that they receive an appropriate and proportionate remuneration and up-to-date and comprehensible information as to the exploitation of their works. It also provides them with the right to renegotiate their revenue when the success is significantly higher than expected and the initially agreed remuneration disproportionally low accordingly (“contract-adjustment mechanism”). When works are no longer exploited in a certain period, they have the right to terminate the contract under certain conditions.

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