Changes to Belgian Copyright law

On 1 January 2015 Book XI of the Belgian Code of Economic Law, titled ‘Intellectual Property’, will enter into force. This book introduces several changes to the Belgian patent and copyright laws. Changes include implementation of (i) new concepts/recent amendments in EU law (e.g. unitary patent protection system and court), (ii) existing EU directives (e.g. extension of the term of protection for fixations of performances and for phonograms from 50 to 70 years), and (iii) further clarification on already existing provisions in Belgian law (e.g. clarification on the use exception for copyrighted works within the framework of academic activities).

Clauses XI.164 to XI.293 of Book XI of the Belgian Code of Economic Law (‘BCEL‘) set out the ‘new and improved’ Belgian copyright law. These clauses will enter into force on 1 January 2015. For the most part, these clauses restate and centralize already existing rules. At the same time, Belgian lawmakers seized the opportunity to introduce certain changes. 

These changes can be divided into roughly five categories: (i) implementation
of Directive 2011/77 on the term of protection of copyright and certain related rights,
(ii) changes to the Belgian rules on the resale right of authors of an original work of graphic or plastic art; (iii) further determination of the rights of the different stakeholders in audio-visual works; (iv) changes to the rules of collective management; and (v) the establishment of a regulator for copyright and certain related rights.

(1)  Implementation of Directive 2011/77

Implementation of Directive 2011/77 on the term of protection of copyright and certain related rights gives rise to the following changes in Belgian law:

–       Extension of the term of protection for musical compositions to 70 years “after the death of the last of the following persons to survive, whether or not those persons
are designated as co-authors: the author of the lyrics and the composer of the
musical composition, provided that both contributions were specifically created
for the respective musical composition with words‘;

–       Amendment of the term of protection for fixed performances in line with European law:
i.       if a fixation of the performance is lawfully published or lawfully communicated to the public within 50 years of the performance, the rights shall expire 50 years from the date of the first such publication or the first such communication to the public, whichever is the earlier,        

ii.       if a fixation of the performance in a phonogram is lawfully published or lawfully communicated to the public within 50 years of the performance, the rights shall expire 70 years from the date of the first such publication or the first such communication to the public, whichever is the earlier.

–       Further determination of the rights of producers of phonograms in line with European law: If the phonogram has been lawfully published or lawfully communicated to the public within 50 years from the first fixation of the phonogram, the rights of producers of phonograms will expire 70 years from the date of the first lawful publication or first lawful communication to the public.

–       Introduction of a right for the performer to terminate the contract by which the performer has transferred or assigned his rights in the fixation of his performance to a phonogram producer, if 50 years after the phonogram was lawfully published or, failing such publication, 50 years after it was lawfully communicated to the public, the phonogram producer fails to offer copies of the phonogram for sale in sufficient quantity
or does not make it available to the public, by wire or wireless means.

–       Determination of the rules regarding performers’ rights to remuneration in line with European law:

i.       Where a transfer or assignment contract gives the performer a right to claim a non-recurring remuneration, the performer shall have the right to obtain an annual
supplementary remuneration from the phonogram producer for each full year
immediately following the 50th year after the phonogram was lawfully published
or, failing such publication, the 50th year after it was lawfully communicated
to the public.

ii.       Where a performer is entitled to recurring payments, neither advance payments nor any contractually defined deductions shall be deducted from the payments made to the performer following the 50th year after the phonogram was lawfully published or, failing such publication, the 50th year after it was lawfully communicated to the public.

(2)  Resale right of authors of an original work of graphic or plastic art

Book XI provides for the establishment of a “unique” platform for the management of resale rights by the collective management organisations (that manage the resale right of authors of an original work of graphic or plastic art). From 1 January 2015 onwards, resale rights vis-à-vis third parties must be exercised through this unique platform. The platform must facilitate a simplified and improved management of resale rights.

(3)  Rights of the different stakeholders/participants in audio-visual works

Authors and performers who have transferred to a producer of an audio-visual work the right to allow or prohibit transmissions via cable, will now have an inalienable right to remuneration for such transmission via cable. The right to remuneration must be exercised through collective management organisations via a ‘unique platform’, to be created by said collective management organisations.

(4)  changes to the rules of collective management

In addition to establishing a unique platform for the management of resale rights and remuneration rights, the Belgian legislator also tightened the rules for collective management organisations in terms of their management structure, administrative and bookkeeping organisation and internal controls. There is an increased demand for transparency and accountability from these collective management organisations in the way that
they run their organisations and manage the rights of their member rightholders.

New obligations on collective management organisations include for instance the obligation to publish on their website a continuously updated and coordinated version of their rules on pricing, collection and distribution of the (copy)rights, the obligation to provide for efficient and swift complaint handling procedures, etc.

With Book XI, the Belgian legislator also sought to simplify the way in which the rates for ‘fair compensation’ are determined. From 1 January 2015 onwards, the rates for fair compensation will be determined by Royal Decree and no longer by a committee.

(5)   Regulator for copyright and certain related rights

Within the Federal Public Service Economy a new Service for the regulation of copyright and the neighbouring rights (SRCN) will be established. The SRCN’s main mission will be to (i) monitor compliance by the collective management organisations with the rules regarding pricing, collection and distribution of (copy)rights; (ii) mediate in disputes regarding copyright and/or related rights; and (iii) advise on the valorisation of copyright and related rights.

Changes to Belgian patent law

Clauses XI. 1 to XI.91 of the BCEL bundle the relevant provisions on Belgian Patent Law. As opposed to the other clauses in Book XI BCEL, these clauses already entered into force on 22 September 2014.

In addition to restating already existing rules and provisions, Clauses XI. 1 to XI.91 also bring about certain changes in Belgian patent law, including but not limited to:

–       Possibility to complete the application for a Belgian patent on a later date: the old clause 16 prescribes the documentation/information that must be submitted for a valid patent application. Under the old system, failure to submit all of the required
documentation simultaneously in a valid form resulted in the rejection of the patent application. Under the new clause 17, an applicant will have the possibility to remediate an incomplete patent submission, by submitting any missing documents within a specified timeframe (determined by Royal Decree). In that case the date of the patent application will be the date upon which the Belgian Office for Intellectual Property will have received the last of the missing documentation.

–       Implementation of changes in European patent law: Book XI BCEL introduces into Belgian law the concept of the European patent with unitary effect. At the same time the provisions regarding the European patent without unitary effect have been amended to reflect clause 65 of the European Patent Treaty.

–       Flexible system of patent annuity payments:
Under the old system annuities must be paid on a yearly basis, starting from
the third year following the patent application. Under the new system, the King
can determine from what year onwards, ranging between the third and fifth year
from the date of the patent application, annuity payments will become due. The
actual amount of patent annuity payments will, from 22 September 2014 onwards, also
be determined by Royal Decree.

–       Introduction of a procedure which allows for Belgian patents to be partially or entirely revoked;

–       Clarification on the legal consequences of the restitution procedure for Belgian patents: The current Belgian patent law provides for a restitution procedure in the event that a patent applicant or owner failed to observe procedural deadlines in the proceedings before the Belgian Office for Intellectual Property and such failure results in the loss of rights in relation to the application or patent. Clause 77 of the BCEL now adds and
clarifies that if restitution is granted, the legal consequences of the failure
to respect procedural deadlines will be considered ‘to have never happened’. In
other words, the patent applicant or owner will be considered to have always
maintained such rights.

–       Introduction of a special restitution procedure for European patents without unitary effect: The BCEL provides for a restitution procedure for European patents without unitary effect, having Belgium as one of the designated countries. If an owner of such a patent fails to provide a translation of the European patent without unitary effect in one
of the national languages of Belgium within a certain timeframe and such failure leads to a loss of rights, the patent owner can seek restitution. If restitution is granted, the legal consequences of the failure to respect procedural deadlines will be considered ‘to have never happened’. European patents without unitary effect granted before the entry into force of the relevant BCEL clause 83 can also benefit from this procedure, which will apply with retro-active effect, provided that the patent owner complies with all the conditions set out in clause 83, including submitting his request for restitution before
22 March 2015.

–       Exclusive competency of Commercial court of Brussels: Clause XI.337 BCEL, which will enter into force on 1 January 2015, provides for the exclusive competency of the Commercial Court of Brussels to hear all patent disputes or claims