What are the requirements for copyright protection under Belgian law?

In order to qualify for protection under Belgian copyright law, a work must meet two basic requirements:

  • The first requirement is that the work must be materialised into a tangible form. Ideas or concept are not protected by copyright.
  • The second requirement is that the work must be original (the author should make minimal creative choices; the creation should not be the product of mere technical requirements). In practice, the originality threshold is rather easily achieved.

What are the types of works in which copyright can subsist?

Copyright can subsist in any work in which the basic legal conditions (tangible form and originality) are united: not only literary, artistic and musical works, but also audio-visual works, web-design and layout, material design including furniture, clothing, etc.

Databases can under certain conditions be protected under article XI.186 and following of the Economic Law Code, and under article XI.306 and following of the Economic Law Code. Software may enjoy protection under article XI.294 and following of the Economic Law Code.

Are there any works that are excluded from copyright protection?

Certain creations, such as official documents by public authorities, speeches made in parliament, etc. are excluded from copyright protection (Article XI.172 Economic Law Code).

Is there a system for registration of copyright? Do I need a © symbol?

No registration is necessary. Under Belgian law, copyright protection is automatically granted as from the creation of the work. This means that the © copyright symbol is not necessary. In practical terms, including a copyright symbol might still be a good idea, to warn the public that your work is copyright protected. Also, if accompanied by the name of the author, the copyright symbol creates a presumption of authorship.

It is possible (but not necessary) to register a work with a notary public or with the Benelux Office for Intellectual Property (BOIP) (the so-called i-depot). Such registration grants the author a proof of date, which may be important in infringement and other discussions.

What is the duration of copyright protection?

The rights of authors are protected within their lifetime and up to seventy years after their death. In case of multiple authors (“collaborative works”), the protection period is 70 years after the death of the last surviving author.

For films and other audio-visual works, the seventy-year period applies from the last occurring date of death among the following people: the principal director (who is always considered to be an author of the audio-visual work); the author of the screenplay; the author of the dialogue; and the composer of the music specifically created for use in the cinematographic or audio-visual work.

For all performances or music recordings from 1 November 2013 on, neighbouring rights for performing artists and producers of music recordings are protected for 70 years after their performance or their recording or after the first communication to the public of that performance or recording. For older performances or recordings and for other neighbouring rights, the duration is set at 50 years.

Is there any overlap between copyright and other IP rights?

Yes, overlaps between copyright and other intellectual property rights such as design rights, database rights, neighbouring rights, etc., are common and mostly non-problematic.

Are there restrictions on copyright protection for works made by an industrial process?

Under Belgian copyright law (and design law), there are no specific rules and no relevant restrictions on the protection of copyright works made by an industrial process.

Who is the first owner of copyright?

The first owner of copyright in a creation is always the natural person who created the work.

Under Belgian law, there is a legal presumption that the person whose name is mentioned on the work is the author of the work, until proof to the contrary.

For audio-visual works, a specific system is set out under article XI.179 of the Economic Law Code, by which the director is by law presumed to be the author. Scenario writers, editors, copywriters, graphic designers of animated works/animated sequences, and authors of musical sound tracks (if written specifically for the audio-visual work) benefit from a presumption of authorship until proof to the contrary. Other persons may claim (first owner) authorship if they can prove that they have made a considerable contribution to the creation of the audio-visual work.

Who owns the copyright on commissioned works?

The individual author(s) shall automatically hold copyright to commissioned works. There is no general applicable “work for hire” doctrine under Belgian copyright law.

However, the copyright to commissioned works can be transferred to the party ordering the works if the following conditions are met:

  • the party commissioning the work is active in the non-cultural sector or in advertising;
  • the work is intended for such activity; and
  • the transfer of rights is explicitly agreed upon (article XI.167 Economic Law Code).

Who owns the copyright on works created by an employee?

In principle, employees are deemed to be the first owners of the copyright in works created under their employment contract. However, copyrights can be – and usually are – transferred to the employer under the condition that:

  • the work is created within the scope of the employment contract; and
  • the transfer of rights is explicitly agreed upon in writing, usually in the employment agreement (article XI.167 Economic Law Code).

Specifically for copyright in software, there is a legal presumption of transfer of copyrights to the employer (Article XI.296 Economic Law Code). For all works other than software, employers are advised to specifically provide for the transfer of copyright in the employment contracts of their employees.

Is there joint ownership for collective works?

If there are multiple authors of a single work, they all get copyright entitlements in the “collective work” (this may be a movie, an advertisement campaign, etc.). This rule applies only to sufficiently creative authors who truly contributed to the work (not to mere technical contributions).

The exploitation of the copyrights in in collective works (also called “collaborative works”) is usually the subject of an agreement between the various authors. If no such agreement exists, the exploitation of the copyrights has to be collective and the authors cannot exploit their part in the work independently of the others. However, each author will remain entitled to bring an action for copyright infringement in his/her own name without the consent of the other authors, and to claim damages.

Are there any formalities for the transfer of copyright?

Valid transfer or assignment of copyrights is not subject to any conditions, although proof of transfer can only be brought against the author in writing.

Also, all contracts are interpreted restrictively in favour of the author (article XI.167 Economic Law Code).

An important restriction is that the author cannot transfer his moral rights (see below). He can transfer the exercise of individual moral rights to third parties (e.g. collective collecting agencies) but cannot transfer the actual ownership of the moral rights as a whole.

Another restriction is that, if an author wants to benefit from tax-friendly copyright royalties under the Act of 16 July 2008, in return for the transfer (or licencing) of his copyrights, it is highly advisable to describe the transfer (or licencing) and the amount of the royalties in sufficient detail in a written contract.

Are there any formalities for a copyright licence?

In principle, the validity of licence contracts is not subject to any conditions. However, any proof of a transfer of rights against the author should be in writing. Also, contracts with regard to a transfer of rights are always interpreted in a restrictive way in favour of the author (article XI.167 Economic Law Code). Licence contracts should mention the remuneration of the author, as well as the scope and duration of the transfer (this is also important for tax reasons).

Are there any further limits to copyright licences?

Other than the limits addressed above, the following limits apply to license terms that parties may agree. Under Article XI.167 Code of Economic Law, the licensee (or assignee) is required to exploit the work in accordance with fair business practices. A transfer of rights relating to unknown future forms of exploitation is null and void under Belgian law. Also, the transfer of rights relating to future works must be limited in time.

Which collective licensing bodies exist for copyright in Belgium?

The most relevant collective copyright agencies are (in alphabetical order):

How are collective licensing agencies regulated?

Collective licensing societies are privately held companies or associations, usually with cooperative membership. Section XI of the Economic Law Code and a number of royal decrees govern their functioning, rights and obligations. As independent bodies, collective collecting agencies enjoy a broad freedom to organise themselves, though since the beginning of 2015, they are more strictly regulated (e.g. their operational costs should be limited to 15% of the fees they collect).

Are there any statutory enforcement agencies?

There are no statutory enforcement agencies in Belgium for the enforcement of copyright.

In practice, custom authorities play an important role in the enforcement of copyright and other intellectual property (IP) rights (either at their own initiative or at the request of right holders; for instance, through seizure or destruction of counterfeited or pirated goods).

Also, the collective licensing societies represent for many copyright owners the most effective channel to enforce their rights.

Arbitration and mediation are sometimes alternatives to civil action.

What are the “economic rights” of the copyright holder?

Copyright owners enjoy so-called “economic rights”, i.e. the exclusive rights to exploit the work. This entails any form of exploitation of the work being subject to the prior authorisation of the rights holder.

Economic rights consist of:

  • the right to reproduce the work (comprising also: the right to authorise adaptations to or translations of the work; the right to authorise rental or lending of the work; and the right to prohibit certain uses of a work) and
  • the right to communicate the work to the public.

What are the “moral rights” of the copyright holder?

The author of the work has the following “moral rights”:

  • the right to disclose the work (“divulgation right”);
  • the right to claim or refuse authorship of the work (“paternity right”); and
  • the right to respect for the work, which permits the author to oppose alterations or distortions of/to the work (“integrity right”).

A global waiver of the future exercise of moral rights is not valid under Belgian law. The non-transferability of moral rights is not absolute, in the sense that an author can waive the exercise of a certain moral right for a particular work. However, the author remains always entitled to oppose the distortion, mutilation or other alterations to his work, as well as any modification that may damage his honour or reputation.

Are there any “ancillary rights” or “neighbouring rights”?

Yes, performing artists, producers of phonograms and films as well as broadcasting organisations have specific ancillary or neighbouring rights.

What is meant by “exhaustion of rights”?

Once a protected work (or copies of that work) has been put on the market in the EEA with the consent of the copyright owner, the right owner will no longer have the right to prevent subsequent sales of the work in the EEA (this is called exhaustion of rights). For the details of this rule (especially with regard to software), we refer to the relevant case law of the Court of Justice of the EU.

Who can bring a claim for copyright infringement?

Other than the copyright owner, other parties, such as licensees, collective licensing societies, public prosecution and customs, can also bring claims for copyright infringement. The extent of their rights to action depends on the specific circumstances of each case. For instance, the right of a non-exclusive licensee might be more limited in scope than the rights of the copyright owner or of an exclusive licensee.

Can an action be brought against ‘secondary’ infringers?

Under specific circumstances, actions can be brought against secondary infringers.

Under civil law (tort law), the party bringing a claim for damages against a secondary infringer will have to prove that the secondary infringer has committed a fault or has been negligent, and that this fault or negligence resulted in damages. Suspension and seizure orders may be brought against secondary infringers as well.

Under criminal law, the claimant or public prosecutor will have to substantiate that the secondary infringer wilfully breached copyright legislation (see below).

Internet intermediaries may, depending on the circumstances, rely on the exemptions for hosting, caching and “mere conduit” (EU E-Commerce Directive).

What are the exceptions to copyright protection?

Various exceptions and exemptions may apply as a defence to a copyright infringement claim. These are often intended to provide a balance between protection of ownership (copyright) and other fundamental freedoms such as freedom of expression.

The articles XI.189 to XI.192 of the Economic Law Code contain the major statutory exceptions to copyright protection. These exceptions cannot be waived e.g. in standard licence-agreements. These exceptions apply only if the work has already been lawfully published. In principle, all exceptions are to be interpreted restrictively and in accordance with the three-step-test.

For instance, a party may rely on the exception for quotation, to quote from a lawfully published work for the purposes of criticism, polemic, review or teaching, or in scientific works in accordance with fair practices and to the extent justified by the purpose. Quotations should as far as possible mention the source and the name of the author.

There are also specific exceptions, e.g. for reporting on current events, temporary acts of reproduction, incidental use of works in a public place, private copying, use for research and educational purposes, parody, public lending rights, the panorama-exception, etc. Finally, the exemptions for intermediary service providers under the E-Commerce Directive come into play as well.

Are interim or permanent injunctions available under Belgian law?

Yes, Belgian courts do grant interim or permanent injunctions in copyright infringement procedures (through summary proceedings or proceedings on the merits). These may be accompanied by confiscation measures and penalties.

How are damages for copyright infringement calculated?

The general principle under Belgian law is that the copyright owner is entitled to full compensation for actual losses suffered as a consequence of the copyright infringement.

If the amount of actual damages cannot be determined, the court may grant a lump sum compensation in fairness and reasonableness (taking into account, among others, the economic impact of the copyright infringement and moral damages).

In practice, courts often grant fixed amounts of damages based on the royalties or compensations that should have been paid had the infringer asked for the copyright owner’s permission.

Courts may also order the surrender of the infringing goods to the benefit of the claimant, as a form of compensation for damages.

In cases where bad faith can be proven, the infringer may be ordered to surrender all profits gained by the infringement (always in proportion to the actual damages).

What are the costs and timeframe of an infringement proceeding?

The costs of infringement proceedings depend on the complexity and the particular circumstances of each case (for instance, if seizure orders, expert opinions, etc. are needed, costs typically increase significantly). Some cases involve several rounds of legal argumentation and may take up to a year (or more) to obtain a decision on the merits. This will be reflected in the costs. Other cases may be resolved in a matter of months (for instance, if a settlement can be reached). In summary proceedings, decisions are typically rendered within a short time period (a matter of weeks or even days).

Is there a right of appeal in copyright litigation?

First instance judgments on the merits may be appealed both on legal or factual grounds (except for minor cases involving claims of less than 1,860 euros).

What is the statute of limitations under Belgian copyright law?

This depends on the type of action.

In general, there is a statute of limitations of five years for claiming compensation for damages based on extra-contractual faults (including copyright infringements). The five-year period starts running from the moment that the right holder becomes aware of the infringement or of its aggravation and of the identity of the person responsible for the infringement.

Irrespective of any knowledge of the right holder, such claims will in any case become inadmissible twenty years after the occurrence of the infringement.

In principle, the statute of limitations for claiming payment of royalties under a contract is ten years.

The statute of limitations for claiming the ownership of a copyrighted work is thirty years.

There is no time limit for an author for claims to be recognised as the author of a work.

Are there any criminal offences for copyright infringement?

According to article XI.293 of the Economic Law Code, any infringement of copyrights with malicious or fraudulent intent may be qualified as an act of counterfeiting.

The same is true for the use of the name of the author of a work with malicious or fraudulent intent.

Also, when a party sells, rents, offers for sale or rent, imports or holds in stock any goods for commercial reasons, knowing that such goods are counterfeit, that party will be guilty of the crime of counterfeit.

What are the threshold and the sanctions for criminal liability?

For criminal liability, there needs to be an element of wilfulness. Generally speaking, this means that one has to prove malicious or fraudulent intent on the part of the infringer. For the sale, rent, offering, holding in stock, etc. of counterfeited goods, this means that one has to prove that the infringer knew that the goods were counterfeits and that the infringement was done for commercial purposes.

Crimes of counterfeit may be punished with prison sentences of three months up to three years and/or fines of 100 euros up to 100,000 euros (to be multiplied by six). Other possible sanctions include the confiscation of the infringing items or of profits, the closure of the infringer’s establishment, the publication of the judgment in newspapers, etc.

Bart Van Besien

Lawyer

Bart@finnian.be