The Control Service for collecting societies for copyright and related rights is part of the Directorate General of the Economic Inspectorate of the Federal Public Service Economy.
The control service primarily supervises collecting societies for copyright and related rights. It specifically ensures compliance with the provisions of Title 5 "Copyright and related rights" of Book XI of the Code of Economic Law and its implementing decrees. The control service also verifies the legality of the internal rules of collecting societies, in particular its articles of association and rules for collection, pricing and distribution. It is a prudential control of the internal, accounting and administrative organisation.
A list of all collecting societies and control bodies in the various EU member states can be found on the website of the European Commission.
Rationale for collective management
For some forms of exploitation, it is impossible in practice to organise a direct contractual relationship between the rights holders and the operator. This impossibility is generally due to two factors:
- firstly, the vast number and geographical dispersion of rights holders and users, and
- secondly, the very short interval between the decision to use and the actual use; which does not allow the operator to identify the rights holders and conclude an agreement with them.
The forms of exploitation with the above-mentioned characteristics include:
- broadcasting and public performance of musical works;
- the cable retransmission of works and performances;
- copying audiovisual and sound works for private use;
- and public lending.
In these sectors, the rights holders have come together in copyright collecting societies. The latter are generally civil law companies that took the form of limited liability cooperative companies. Based on reciprocal representation agreements concluded with foreign companies, Belgian collecting societies also represent foreign repertoires on Belgian territory, and conversely, foreign companies represent the repertoires of Belgian companies in their countries.
Concentrating copyrights and related rights in one single company, as well as applying one method of exploitation, offers advantages to the operators of protected services and works. Operators have a single point of contact which is tasked with representing a wide repertoire of protected performances and works. They may also conclude a general agreement with the company for the exploitation of the entire repertoire. In exchange for the operating licence, the operator generally undertakes to pay a fee and provide a list of the works and performances he will exploit.
Concentrating rights also offers benefits to the rights holders. They can, therefore, effectively assert their exclusive rights and their rights to remuneration. In the absence of collective management, most rights holders would not receive any remuneration for the exploitation of their works and performances.
Aware of these advantages, the legislator imposed the collective management of rights for certain forms of exploitation. This concerns:
- cable retransmission;
- copying audiovisual and sound works for private use;
- remuneration for reprography;
- legal remuneration for publishers;
- remuneration for reproduction and communication to the public, for the purpose of illustrating teaching or scientific research;
- public lending;
- radio broadcasting;
- and the communication of a performance in a place which is accessible to the public.
To this end, the legislator introduced a presumption of rights management in favour of collecting societies (Article XI.224 of the Code of Economic Law, hereinafter referred to as the CEL) or has granted a legal monopoly to a collecting society for the purpose of collecting and distributing rights to remuneration (Articles XI.213, XI.225, XI.229, XI.239 and XI.244 of the CEL).
Rights and obligations of collecting societies, rights holders and users
Collecting societies have a 'de facto' or 'de jure' monopoly position. Except in the case of legal licences, they generally determine their tariffs unilaterally, as well as the related reference amounts, the method of collecting fees, the conditions of authorisation for rights holders, the status and rights of right holders in the society, the method of distributing rights and cover for their operating costs.
In order to prevent or remedy abuses and discriminatory behaviour, the legislator has:
- granted rights to the rights holders;
- granted rights to users and
- imposed obligations on collecting societies.
The main rights granted to the rights holders are:
- the right to be an associate subject to compliance with objective conditions laid down by the articles of association applied in a non-discriminatory manner (Article XI.248/1 of the CEL)
- the right to be represented on the bodies of the society (Articles XI.248/1 of the CEL);
- the right to entrust the management of one or more categories of works or performances in their repertoire to the society of their choice or to manage them themselves (Art. XI.248/2 of the CEL), subject to certain exceptions set by the CEL;
- the right to entrust the management of the rights relating to one or more categories of works or performances to another collecting society, or to manage them themselves (Article XI.248/3 of the CEL)
- the right to obtain certain information such as the rules of distribution (art. XI.249 of the CEL) and a statement of the relevant collections and distributions (art. 22 of the Royal Decree of 25 April 2014 on the administrative and accounting organisation, internal audit, accounting and annual accounts of collecting societies for copyright and related rights and the information they must provide (Belgian Official Journal 27.06.2014), hereinafter the RD of 25 April 2014);
- the right to file a complaint with the collecting society (art. XI.273/1 of the CEL);
- the right to grant licences for non-commercial use of the rights, categories of rights or types of works and performances of their choice (Art. XI.248/2 of the CEL).
The main rights granted to the users are:
- the right to fair, non-discriminatory and published tariffs (art. XI.249 and XI.262 of the CEL)
- the right to benefit from a minimum level of information regarding invoices and collection documents (art. XI.271 of the CEL and art. 21 of the Royal Decree of 25 April 2014)
- the right to consult the repertoire of collecting societies (art. XI.267 of the CEL)
- the right to file a complaint with the collecting society (art. XI.273/1 of the CEL).
The main obligations imposed on collecting societies are:
- to accept only the rights holders as associates (art. XI.248/1 of the CEL);
- to manage the rights in a fair and non-discriminatory manner in the interest of the rights holders;
- to be structured and organised in such a way as to limit the risk of conflicts of interest;
- to separate their own assets from those of the rights holders, and to have a management structure, an accounting organisation and an external audit adapted to their activities (art. XI.248 of the CEL and articles 2 to 7 of the RD of 25 April 2014)
- to manage the rights when requested by the rights holder (art. XI.248/1 of the CEL)
- to publish the society's pricing, collection and remuneration rules for each mode of exploitation (art. XI.249 of the CEL)
- to communicate to any user of protected works or services the works or performances they manage (directly or through a representation agreement) and the territory covered (Art. XI.267 of the CEL)
- to allocate and pay the rights collected no later than nine months from the end of the fiscal year in which the revenue from the rights was collected (Art. XI.252 of the CEL). Failing this, to publish the reasons for the non-payment in the management report;
- to refrain from taking more than 15% to cover its expenses (art. XI.256 of the CEL);
- to distribute among the rights holders of the category concerned the funds which, definitively, cannot be allocated (art. XI.254 of the CEL)
- to provide each rights holder at least once a year with details relating to copyright or related rights that have been distributed or paid to them (art. XI.269 of the CEL)
- to store data on the pricing, collection and distribution of the rights for ten years (art. XI.280 of the CEL)
- to respect professional secrecy for all information of which they have knowledge in or in the course of carrying out their duties (art. XI.281 of the CEL).
In order to ensure greater transparency in their activities, collecting societies are also subject to an accounting regime containing exceptions under Article XI.248/9 of the CEL, which imposes certain specific obligations and empowers the King to specify the content of these obligations. The RD of 25 April 2014 specifies these obligations. The objective is to provide clarity:
- as to where the sums collected and distributed have gone, per collection heading;
- as to the remuneration of the collecting societies;
- and as to what is part of the society's assets and what is part of the assets of the rights holders.
To this end, the collecting societies communicate a management report to the Control Service and publish it on their website, the content of which is specified in Article XI.248/6 of the CEL.
Additional rules on the control of collecting societies
Article XI.248/9 of the CEL and Articles 2 and 6 of the RD of 25 April 2014 impose an internal audit on collecting societies and specify the scope of this audit.
Article XI.273/10 of the CEL subjects collecting societies to an audit by one or more statutory auditors chosen from among the members of the Institute of Company Auditors. Article XI.273/16 of the CEL specifies the role of the statutory auditor.
Control Audit by the federal authority
Collecting societies must be authorised to carry on their activities in Belgium by the Minister responsible for copyright (art. XI.273/17 of the CEL).
The role of the Control Service of the Federal Public Service responsible for copyright is to ensure that the collecting societies apply the law and their articles of association and rules on pricing, collection and distribution (art. XI.279 of the CEL).
The Control Service also exercises preventive control over draft amendments to the articles of association and the rules on pricing, collection and distribution (Article XI.272 of the CEL).
In accordance with Article XV.31/1 CEL, the Control Service may issue a warning to the collecting society or any person carrying out unauthorised management activity, after questioning them. This is the case when it has been identified that:
- a rights collecting society is in breach of the provisions of Book XI, Title 5, its implementing decrees, its articles of association or its rules on pricing, collection or distribution;
- or a person carries out a management activity within the meaning of Article XI.246 of the CEL without the authorisation required under Article XI.273/17 of the CEL.
Any identified shortcomings must be remedied within a certain period of time, otherwise an administrative penalty may be imposed and/or legal proceedings may be initiated.
The officials of the control service are also authorised to investigate and record criminal offences referred to in Article XV.112 of the CEL.
Collective management bodies and independent management entities
The law of 8 June 2017 amended several provisions of Book XI of the CEL. It is the transposition into Belgian law of Directive 2014/26/EU. All the provisions of this law came into force on 1st January 2018.
One of the changes brought by this law is that from now on, a distinction must be made between the various entities managing copyright or related rights, which are each subject to a different level of supervision, namely:
- collecting societies ;
- collective management bodies with a branch or establishment in Belgium and
- and independent management entities with a branch or establishment in Belgium.
Each of these societies or entities is subject to the supervision of the Control Service for collecting societies.
Only collecting societies and collective management bodies established in Belgium or having a branch in Belgium are required to have a ministerial authorisation in order to carry out their activities.
Collective management bodies
Collective management bodies are bodies established in another Member State of the European Union. When they carry out activities in Belgium on a permanent, long-term basis, they are legally required to have an establishment or branch in the country. These bodies are subject to a range of obligations, which are, however, less extensive than those applicable to collecting societies. The competence of the Control Service is limited exclusively to the activities of the body in Belgium.
Independent management entities
The law of 8 June 2017 also introduced a new concept: independent management entities. These are organisations whose sole or main purpose is to manage copyright or related rights on behalf of multiple rights holders for the collective benefit of the latter. Unlike collecting societies for copyright or related rights, these bodies are not owned, directly or indirectly, or controlled by the rights holders.
In accordance with Art. XI.273/18 of the CEL, independent management entities established in Belgium or operating in Belgium via a branch must make a declaration to the Control Service before starting their activities. They are then required to submit to the Control Service a declaration form, the details of which, including the information and documents to be included, are set out by the Royal Decree of 11 March 2018.
At present, there are three independent management entities in Belgium:
- Auteursbureau Almo
- Toneelfonds J. Janssens
- Visual Rights Group
They have submitted a declaration to this effect and have been considered as such since 1st January 2018.
Wish to file a complaint?
The Control Service is responsible for ensuring that the law and the articles of association, as well as the tariffs and rules for collection and distribution, are applied by the collecting societies. You can file a complaint with the Contact point of the FPS Economy (choose the copyright scenario) against a collecting society for copyright by users, rights holders or third parties, when the decisions and measures taken by a collecting society do not comply with its legal, contractual or articles of association-related obligations.