Changes to Belgian Copyright law

Written on 17 Dec 2014

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