Brussels Court of First Instance Holds that Internet Service Providers Should Not Pay Copyright Fees

On 13 March 2015, the Brussels Court of First Instance (Rechtbank van Eerste Aanleg / Tribunal de Première Instance) found that internet service providers ("ISPs") should not pay copyright fees to the Belgian Association for Authors, Composers and Publishers ("SABAM").

The dispute arose from SABAM's 2011 decision to impose copyright fees on Belgian ISPs. SABAM considered that, since ISPs offer access to the Internet, which contains copyrighted materials, ISPs can be considered to "communicate these materials to the public" within the meaning of Article XI.165 of the Code of Economic Law (Wetboek van Economisch Recht / Code de droit économique) (formerly Article 1 of the 1994 Copyright Law), without the consent or remuneration of the authors. The Belgian State, represented by the Federal Public Service ("FPS") Economy, contested this analysis before the Brussels Court of First Instance, following an expedited procedure (zoals in kort geding/comme en référé). Telecommunications operators and ISPs Belgacom, Telenet, Nethys and Brutélé decided to intervene in the procedure in support of the Belgian State.

The Court of First Instance first acknowledged that charging ISPs would be "unquestionably technically easy" for SABAM, which would not have to identify every individual who uploads copyrighted content on the Internet without SABAM's consent and/or without paying a fee. However, the Court stated that copyright fees are only due when there is a "communication to the public" within the meaning of Article XI.165 of the Code of Economic Law.

Turning to this central issue, the Court noted that all parties agreed on the fact that the contested communication is preceded by an "originating communication to the public" within the meaning of Article XI.165. This "originating communication" is made by Internet users or content providers, addressed to the entire Internet community (or part of it, if access to the content is subject to conditions) and subject to copyright.

The Court then considered whether the ISPs' role is limited to the provision of equipment enabling communication, or whether it is broader. If the former applies, there is no communication subject to copyright, since recital 27 of Directive 2001/29/EC makes it clear that the mere provision of physical facilities enabling communication does not amount to communication under copyright law. Under the latter hypothesis, the Court investigated whether the situations of "upstream" and "downstream" Internet traffic mentioned by SABAM could include a second communication, which would follow the "originating communication" and would also be subject to copyright.

Upstream Internet traffic allegedly includes communication from Internet users who upload copyrighted materials. The Court found that, in this case, the user's ISP is the only recipient of the communication. Therefore, there is no communication "to the public" within the meaning of Article XI.165.

In a situation of downstream traffic, the alleged communication is made by ISPs to their customers and occurs whenever customers download copyrighted content from the Internet. The Court found that ISPs merely enable the "originating communication", since ISPs' customers are part of the public to whom the "originating communication" is addressed. As a result, there is no other communication than this one.

The Court concluded that ISPs are not components of the communication process but intermediaries indispensable to the functioning of the Internet, which is the medium chosen by the Internet users to communicate. The Court also made clear that the fact that measures can be taken against intermediaries enabling counterfeiting does not imply that intermediaries are subject to copyright.

As a result, the Court concluded that ISPs do not communicate copyrighted content to the public within the meaning of Article XI.165 of the Code of Economic Law and therefore should not pay copyright fees to SABAM. This judgment will likely have a decisive impact on the outcome of the case brought by SABAM against Belgacom, Telenet, Nethys and Brutélé for payment of the copyright fees, which is currently pending before another chamber of the same Court. SABAM can appeal this decision before the Brussels Court of Appeal.