On 1 August 2022, the Law of 19 June 2022 on copyright and related rights in the digital single market was published in the Belgian Official Gazette and immediately entered into force , finally transposing the European Digital Single Market (DSM) Directive into Belgian law. This brings Belgium one step closer to a more modern (read: internet/digital proof) regulation of copyright and related rights.
On 1 August 2022, the Law of 19 June 2022 on copyright and related rights in the digital single market was published in the Belgian Official Gazette and immediately entered into force, finally transposing the European Digital Single Market (DSM) Directive into Belgian law. This brings Belgium one step closer to a more modern (read: internet/digital proof) regulation of copyright and related rights. We provide you with some key innovations introduced by this Law.
First of all the Law introduces new exceptions to copyright and related rights, more specifically exceptions for the use of technologies for text and data mining, for illustration in education in the digital environment, and for the preservation of cultural heritage.
Secondly, where authors and performers licence or transfer their rights, the Law provides that they retain the right to receive appropriate and proportionate remuneration. This principle is further complemented by certain measures to ensure appropriate and proportionate remuneration (e.g. transparency obligation on revenues, mechanism of extra-judicial dispute resolution, etc.). Even if the notions “appropriate” and “proportionate” are rather vague, they will nevertheless offer protection to authors and performers.
A third quite breaking innovation is that the Law introduces a new right for publishers of news or journalistic content established in the EU, who are entitled to restrain unauthorised copying and distribution of their publications online during two years after first publication. This right does not apply in respect of the use of individual words or very short extracts, nor does it apply to acts of hyperlinking. The legislator does not define ‘very short extracts’, leaving room for discussion. In reaction to the transposition of the DSM-Directive (and this new right for press publishers) in France, Google France has already announced that, from now on, they will simply share the title of press publications and hyperlink them underneath, somewhat undershooting the object of the provision. It remains to be seen whether the other players will follow Google France.
Equally worth mentioning is that the Law provides a new licensing mechanism for out-of-commerce works so that cultural heritage institutions, such as libraries and archives, can make such works available to the public. However, the rightholders of these works may decide at any time that these institutions do not or no longer have the right to do so (for all of their works, certain works or certain uses).
Last but not least, the Law introduces a new liability regime for online content-sharing service providers such as YouTube and Facebook, that allow, for example, to hold them accountable for copyright violations on their platforms (cfr. Article 17 of the DSM Directive). However, the Law also foresees that these providers may be exempted from liability if they, inter alia, actively monitor the content uploaded by users in order to prevent the placing online of protected subject matter that rightholders do not wish to make available. If you want to find out more about this regime, we refer to our previous post regarding Poland’s unsuccessful attempt to annul this new liability regime/Article 17 of the DSM Directive before the European Court of Justice.
It is clear that the Law of 19 June 2022 introduces a number of important new innovations and a much-needed update of the Belgian copyright rules to the emergence of digital technologies.
CAPE IP Law
2 September 2022