The Digital Single Market Directive (Directive 2019/790/UE – “DSM”) was finally recently transposed into Belgian law by a law of 19 June 2022 (“new Act”), that was published into the Official Gazette on 1st August 2022. Most of the provisions were implemented into Book XI of the Code of Economic Law and came into force the same day, i.e. on 1st August 2022.
You will find below an overview of the main changes introduced by the new Act.
1. IMPROVEMENT OF THE POSITION OF RIGHT HOLDERS
The following provisions have been adopted to tackle the increased digital and cross-border use of copyrighted work.
a) A new neighbouring right for press publishers
The Act introduces a new neighbouring right under which press publishers can grant licenses for the online use of their publications and get remuneration.
For each online use (reproduction and making available to the public), online content sharing platforms such as Google News will have to obtain the consent of the press publishers by means of license agreements. The duration of this new right is limited to two years.
Such right does not apply to hyperlinking.
b) New rules for sharing online protected content
Under the new Act, online content sharing platforms such as Facebook, Youtube, and Tiktok must obtain permission from the right holders when they provide the public with access to copyrighted works or other protected materials uploaded by their users.
Without the right holders’ authorization, the service provider will be liable for unauthorized acts of communication to the public, unless they can demonstrate that (i) they made their best efforts to obtain the authorization and that (ii) they have made their best efforts to ensure the unavailability of the unauthorized content, and (iii) they have acted expeditiously to remove any unauthorized content following receipt of a notice and also has made their best efforts to prevent future uploads.
The new Act also provides that right holders can demand the removal of content online and provides for a new summary proceedings to fight online infringements.
c) Measures to ensure appropriate and fair remuneration of authors and performers
The new Act finally contains 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 that apply to license or assignment agreements or performing rights include a.o.:
- A transparency obligation that aims to help right holders have access to more information about the exploitation of their works;
- A contract adjustment mechanism or “success clause” that will grant right holders the right to review their remuneration to obtain a fair share when the remuneration originally agreed becomes disproportionately low compared to the success of their work;
- A right of revocation that gives the possibility to authors and performers to regain their rights when their works and performances are not exploited by the persons with whom they concluded an exclusive contract;
- A general principle of appropriate and proportionate remuneration for authors and performers for all licenses granted or rights assigned.
With the implementation of the DSM, it can be safely said that copyright is entering the digital age and that the rights of the right holders will be more effectively protected on the internet.
2. FOUR NEW MANDATORY EXCEPTIONS TO COPYRIGHT
With the emergence of digital technologies in the fields of research, innovation, education and conservation of cultural heritage, it was necessary to provide new exceptions to copyright and related rights to allow for new types of use that were not previously covered by an exception.
The new Act provides exceptions for:
- Text and data mining (TDM) for research purposes. This exception covers reproductions and database extractions by research organizations and cultural heritage institutions for the purposes of scientific research ;
- TDM exception for other (private) purposes. This exception covers reproductions and extractions of lawfully accessible works and other protected materials for the purpose of (private) TDM, as long as they have not been expressly reserved by the right holder ;
- Illustration of cross-border teaching and educational purposes. This exception covers the digital use of works exclusively for the purpose of illustration in the context of cross-border teaching;
- Preservation of cultural heritage. This exception concerns reproductions by cultural heritage institutions (such as museums, libraries, and archives...) of any works or other subject matter that they hold in their permanent collections.
Consequently, as a business, you need to take these changes into consideration and possibly adapt your contracts and licensing mechanisms to make sure that your business is compliant with the new regime.
