European Directive on copyright and related rights in the Digital Single Market – transposition in Belgian law

Directive (EU) 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC was adopted on 17 April 2019. 

This directive covers a variety of different subjects, such as:

• exceptions for text and data mining;
• exceptions for teaching in a cross-border context;
• a system for the exploitation of out-of-commerce works by cultural institutions;
• a new related right for press publishers;
• measures relating to certain uses of protected content by online services;
• and provisions relating to the contract rights of authors and performers.

The Directive has been transposed in Belgium by the law of 19 June 2022, most of whose provisions come into force on 1stAugust 2022.

Four new mandatory exceptions

The first part of the directive provides four new compulsory exceptions to copyright and related rights. They pertain to the surge of digital technologies in the field of research, innovation, education and the conservation of cultural heritage, and they allow new types of exploitation that were not previously covered by an exception.

The directive provides exceptions for:

• reproductions and database extractions by research organisations and cultural heritage institutions for the purposes of scientific research, in order to carry out text and data mining of works or other subject matter to which they have lawful access (Article 3 of the Directive, transposed by Articles XI.191/1, XI.191/2, XI.217/1 and XI.310 of the Code of economic law);
• reproductions and extractions of lawfully accessible works and other subject matter for the purpose of text and data mining. This exception differs from the previous one, as it also applies to private and public entities that widely use and analyse large amounts of data in different areas of life and for various purposes. Furthermore, this exception only applies if the use of the works or other subject matter is not expressly reserved by their right holders in an appropriate manner (Article 4 of the Directive, transposed by Articles XI.190, XI.191, XI.217, XI.299 and XI.310 of the Code of economic law);
• the digital use of works and other subject matter for the sole purpose of illustration for teaching, provided that the use takes place under the responsibility of an educational establishment, on its premises or at other venues, or through a secure electronic environment which is accessible only by the educational establishment's pupils or students and teaching staff (Article 5 of the Directive, transposed by Articles XI.191/1, XI.191/2, XI.217/1, XI.240, XI.299 and XI.310 of the Code of economic law);
• reproductions by cultural heritage institutions (such as museums, libraries, archives...) of any works or other subject matter that the hold in their permanent collections, for the purpose of the preservation of such works or other subject matter (Article 6 of the Directive, transposed by Articles XI.191/1, XI.191/2, XI.217/1, XI.240, XI.299 and XI.310 of the Code of economic law).

Wider access to out-of-commerce protected content

A second part of the directive provides measures to guarantee wider access to content. As such, cultural heritage institutions, such as libraries and archives, can make out-of-commerce works and other protected subject matter available to the public. Nevertheless, the rightholders of these works (authors, publishers, musicians, actors, producers etc.) may decide at any time that these institutions do not or do no longer have the right to do so for all of their works, certain works or certain uses.

Improvement of the position of rightholders

A third part is devoted to various measures to improve the position of rightholders regarding the increased digital and cross-border use of content that is protected by copyright and related rights.

These measures include, amongst ohters:

A new right for press publishers

The Directive introduces a new right for publishers of press publications to make it easier to grant licences for the online use of their publications. This provides a better protection of their rights and they can receive a remuneration to recoup their investments. It also ensures the sustainability of the publishing industry (Article 15 of the Directive, transposed by Articles XI.216/2, XI.216/3, XI.217, XI.217/1, XI.218/1 and XI.245/7 of the Code of economic law).

Any online use (reproduction and making available to the public) of a press publication by an information society service provider requires the authorisation of the relevant press publisher. Therefore, content aggregators must conclude licensing agreements with the press publishers in order to be allowed to fully or partially publish their publications. However, this new right does not apply to the use by individual users.

If a negotiated agreement between the information society service provider and the press publisher cannot be reached, Belgian law also provides for a special alternative dispute resolution mechanism. The Belgian Institute for Postal Services and Telecommunications (BIPT) is empowered to settle the dispute by means of a binding decision, provided that the parties have at least tried to reach an agreement in good faith beforehand.

The new right of press publishers has a limited duration and expires two years after the date of publication of the press publication. The Directive and the Belgian law also state that the authors of works that are incorporated in a press publication are entitled to an appropriate share of the compensation that the publishers receive from information society service providers for the use of their press publications.

In order to facilitate the determination of this appropriate share of the compensation to which press publishers are entitled, the Belgian law provides for an obligation of transparency on the part of information society service providers towards press publishers. This is intended to enable press publishers to assess the economic value of their right. The same applies to press publishers with regard to the authors of works incorporated in a press publication.

New rules for sharing protected content

The Directive provides new rules for online content-sharing service providers for protected content that is uploaded by its users (Article 17 of the Directive, transposed by Articles XI.228/3, XI.228/5, XI.228/6, XI.228/7, XI.228/8 and XI.228/9 of the Code of economic law). According to the European legislator, this provision is intended to eliminate legal uncertainty that exists as to

“whether the providers of such services engage in copyright-relevant acts, and need to obtain authorisation from rightholders for content uploaded by their users […] [and which] affects the ability of rightholders to determine whether, and under which conditions, their works and other subject matter are used, as well as their ability to obtain appropriate remuneration for such use.” (Recital 61 of the Directive).

Online content-sharing service providers must, therefore, obtain the authorisation of the rightholders when they allow the public to access works or other subject matter that is protected by copyright and that was uploaded by their users. In this respect, the Belgian law also provides for a non-transferable right to remuneration for authors and holders of related rights whose works and performances are uploaded. Without the rightholders’s authorisation, the service provider shall be liable for unauthorised acts of communication to the public, unless they can demonstrate that they made best efforts to obtain the authorisation.

The Directive and the Belgian law also give rightholders the possibility to inform online content-sharing service providers of the unauthorised presence of their works on their online service. In addition, they can ask for it to be removed or blocked. As such, the online service providers must act expeditiously in order to ensure that the content identified by the rightholders is removed or blocked.

Measures to ensure appropriate and fair remuneration for authors and performers

Finally, the Directive and the Belgian law contain measures to ensure that authors and performers (actors, singers, musicians etc.) receive an appropriate and fair remuneration for the exploitation of their works and performances. These measures include a.o.:

• a transparency obligation concerning remuneration of the parties to whom they transferred their rights or granted the licence (for example, producers and publishers), with regard to artists and performers (Article 19 of the Directive, transposed by Articles XI.167/2, XI.167/5, XI.205/2 and XI.205/5of the Code of economic law);
• a success clause for authors and performers when the initially agreed remuneration does not allow them to enjoy the unexpected success of the exploitation (Article 20 of the Directive, transposed by Articles XI.167/3, XI.167/5, XI.205/3 and XI.205/5 of the Code of economic law);
• the possibility for authors and performers (right of revocation) to regain their rights when their works and performances are not exploited by the persons with whom they concluded an exclusive contract (Article 22 of the Directive, transposed by Articles XI.167/4, XI.167/5, XI.205/4 and XI.205/5 of the Code of economic law);
• out-of-court redress mechanisms for the settlement of disputes (Article 21 of the Directive); and
• the provision of a right to remuneration for authors and performers in respect of certain information society service providers whose main purpose or one of the main purposes is the offering for profit of a significant quantity of audio and/or audiovisual works (Articles XI.228/10 and XI.228/11 of the Code of economic law).