English
1. Introduction
The copyright directive has not been implemented yet into Belgian law. As to the implementation process, the Belgian situation is rather intricate. As early as April 2001 (thus before the adoption of the directive), a bill coming from MP Mr Monfils (then member of the Deputy Chamber) aimed at transposing the European directive. Save for another parliament bill and a draft text coming from the ministry of Justice, that bill was the primary source for the implementation process until the legislative elections of 2003. After the elections, everything had to be started anew.
On
This Bill (Projet de loi transposant en droit belge la directive européenne du 22 mai 2001 sur l’harmonisation du droit d’auteur et des droits voisins dans la société de l’information, available in French and Dutch here) is the one we will analyze below.
As far as technological measures are concerned, the Article 13 of the Bill proposes to introduce a new Article 79bis in the Copyright and Related Rights Law (dated 30d June, 1994) that copies largely the Article 6 of the directive, save for the safeguarding mechanism related to the exceptions for which the Belgian lawmaker proposes to grant to the users the benefit of a court action.
The Bill also plans to modify the Belgian Law on the legal protection of databases (dated
2. Definition of Technological Measures
The proposed Article 79bis, §1, al.4 defines technological measures, as in the directive, as follows:
“the technological measures are technologies, devices or components which, in the normal course of their operation, are designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the rightholder of any copyright or any right related to copyright.”
Only technological measures applied to material protected by copyright or to objects protected by neighbouring rights (protection afforded to performers as to their performances, to phonogram or film producers as to their phonograms or films, and to broadcasters as to their broadcasts) are covered. Circumventing a technological barrier restricting the usage of public domain material is therefore not illegal.
One the other hand, the definition is not strictly related to copyright infringement but, more broadly, to any act that the copyright holder wishes to restrict or control by technical means. As does the directive, this declares any technological measure used to protect copyrightable material, a protected technological measure under the law. Whatever the aim of the technical device might be (limiting copying, controlling access to a work or monitoring its usage), it will be protected against acts of circumvention. Nevertheless, this broad definition might be qualified by the explanatory memorandum of the Bill that says that it covers the devices that aim at “protecting the copyright and related rights provided for by the law”. Such a reference to the aim of the technical protection, that should be linked to copyright and related rights, might lead, one the Bill enacted and entered into force, to a stricter interpretation of the definition of TM, preventing TM which technically constrain the use of a work but which do so in another purpose than the protection of copyright (e.g. to prevent a competitive an interoperable product, etc.), from being protected against circumvention.
A similar definition, adapted to the database context, will appear in the specific law on the sui generis right in databases (see the article 26 of the Bill).
3. Effectiveness
The proposed bill makes unlawful the act of circumvention and the so-called preparatory activities, i.e. the making of and trafficking in circumvention devices.
Circumvention
The first paragraph of the proposed Article 79bis states that anyone circumventing an effective technological measure, with the knowledge or with reasonable grounds to know that she is pursuing that objective, will be liable under Articles 81 and 83 to 86 of the Belgian Copyright Law.
Those Articles provide the criminal sanctions and remedies for copyright infringements. At the criminal level, a copyright infringement is an offence punishable by a fine of up to 2500 € (however, under Belgian law fines are multiplied by the so called "décimes additionnels", which means 200 times the amount of the fine. The maximum fine can therefore be 500 000 €). In the event of a repeated offence, article 81 provides for a sentence of three months to two years and/or a fine of 2,5 to 2500 €.
Article 87 of the Copyright Law sets a injunction procedure called “action en cessation” that aims at stopping infringing activities. The Bill does not explicitly refer to that injunction procedure. Nevertheless, the explanatory memorandum states that such an injunction will be open to any person harmed by a circumvention activity. Such a possibility might appear in the text itself of the Bill as many commentators have criticised the lack of an explicit reference to the injunction.
Actual or constructive (i.e. having grounds to know) knowledge will be sufficient to be criminally liable. Remarkably, this is a lower threshold than the ones that are normally required for copyright infringements. Indeed, only copyright infringements that are made with the intention to make an undue profit out of the infringement or with the intention to harm the copyright holder are punishable under criminal law.
Circumvention Devices and Services
The proposed Article 79bis provides for the same criminal penalties and remedies with regard to anyone who manufactures, imports, distributes, sells, rents, advertises for sale or rental, or possesses for commercial purposes of devices, products or components and anyone who provides services which:
(a) are promoted, advertised or marketed for the purpose of circumvention of, or
(b) have only a limited commercially significant purpose or use other than to circumvent, or
(c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of,
any effective technological measures.
Again, the list of prohibited activities is taken verbatim from the directive. It should be noted that no intention to harm or to fraud the copyright holder, even less a knowledge requirement, is required for those activities to be considered as criminal offences. That makes the offence of counterfeiting a very broad one, with blurry boundaries, particularly since the criteria for the device to be deemed unlawful are rather unclear. However, a key rule for interpretation of criminal law, that of the restrictive interpretation, should apply here: in cases of doubt as to whether a particular device “has only a limited commercially significant purpose or use other than to circumvent”, the device should be considered as not being punishable under criminal law.
5. Exemptions and Exemption Procedure
Taken into account the overbroad definition of the protected technological measures, a technological measure that restricts or prevents the exercise of a usage covered by a copyright exemption is certainly protected under the above provisions, both in the European directive and in the proposed Belgian law. Circumventing a technological measure in order to make a private copy, or an educational use, or a parody, in fact, all uses exempted under Belgian Copyright Law, will be unlawful.
To solve this contradiction, the Bill implements Article 6(4) of the directive and provides that the beneficiary of some exceptions to copyright can ask a court to enjoin rightholders to let them benefit from those exceptions (proposed articles 79bis, §2 & 87bis).
The text states that the rightholders have to take voluntary measures in a reasonable delay, including agreements between rightholders and other parties concerned, so as to make available to the beneficiary of an exception, the means to benefit from that exception. That obligation requires that the beneficiary of an exception has legal access to the work or other subject matter and only covers the following exceptions:
- the making of an anthology of works aimed at teaching purposes (article 21 Copyright Act)
- reprography (article 22, §1er, 4° Copyright Act)
- reproduction of works for the illustration of teaching (articles 22, §1er, 4°bis & 4°ter Copyright Act)
- some acts of reproduction made by libraries, archives and museums (proposed article 22, §1er, 8° of the Copyright Act)
- ephemeral recordings of works made by broadcasting organisations (proposed article 22, §1er, 10° of the Copyright Act)
- exception in favour of handicapped persons (proposed article 22, §1er, 11° of the Copyright Act)
The obligation also applies to related right holders as to similar exceptions related to related rights, to holders of a copyright in a database as to the exceptions of analogue private copy, illustration of teaching and public security, and to holders of a sui generis right in a database as to the exception for teaching and research and to the exception for public security.
The proposed article 87bis introduced by the Bill gives competence to the President of the court of first instance to state that the concerned rightholders are failing to comply with this obligation and to subsequently enjoin them to take necessary measures to enable the beneficiary of the exceptions listed above to benefit from them. Such an injunction can be introduced by the beneficiary of an exception, by the Minister being competent for copyright issues, by a professional association and by an association defending consumers’ rights.
It is worthwhile to note that this injunction is a rapid procedure.
The Bill does not grant the same regime to the private copy exception and does not take the option offered by article 6(4), al.2 of the directive. Other traditional exceptions in Belgian law are not covered, such as those permitting the parody, quotations, private communications and news reporting.
As far as exceptions are concerned, the rightholders will thus have a real obligation to act in order to grant to users the benefit of the exceptions. The explanatory memorandum of the Bill seems to indicate that it is only an encouragement to the rightholders to do something and not an effective obligation. This is nevertheless in contradiction with the text and logic of the Bill that offers to the users an injunction procedure as a sanction and remedy to that obligation. Note also that the directive does not oblige the rightholders to do anything, it just encourages them to find appropriate, but voluntary, measures.
As does the directive, the Bill states that the safeguard solution for the exemptions does not apply in respect of works or other subject-matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them. One peculiarity of the Belgian Copyright Law should be stressed here. The Law provides that the copyright and neighbouring rights exemptions are mandatory, which means that they can not be contracted out. One point of contention was to know to what extent that mandatory nature might be an obstacle to the technological measures or whether the rule of the directive stating that no exception can be invoked against the operation of technological measures when the work is made available to the public on agreed contractual terms. The Bill settles the issue by stating that the mandatory nature of the exemptions will not apply in that case. The proposed article 23bis (and 47bis as far as exceptions to related rights are concerned), if enacted, would state that “exceptions laid down in the law can be contracted out when works are made available on demand on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them”.
This would make the mandatory nature of the exemptions a very odd rule. Normally, granting such a nature to a legal provision means that one agrees that the provision is an important one and aims at strongly protecting the beneficiaries of the provision, even in case of a contract. If the Bill is adopted as it stands now, that protection will be afforded only when the concerned persons conclude a contract with the rightholders in an off-line environment, but not when concluding contracts on-line. That latter environment is yet the one where they might enjoy less negotiating power. Moreover, from a strictly legal point of view, it is not consistent to state that a rule has a certain status in one situation and another in a second situation.
6. Neighbouring Rights and Database Rights
As said before, the Bill similarly applies the protection of technological measures to copyrighted works and to subject-matter protected by a neighbouring right or a sui generis right, mutatis mutandis.
7. Technological Protection of Software
Software is protected, under Belgian Law, by another piece of legislation than the main Copyright Act, (note that both laws are dated the 30d June 1994) Therefore, in order to leave untouched the provisions on the protection of technological measures relating to a computer program, as prescribed by the directive, the Belgian legislator does not have anything to do. Nevertheless, it would be useful to explicitly state that technological measures protecting software are regulated by the specific provision of the Law on the legal protection of computer programs (Article 10(2)), and not by the provisions dealt with above. The Bill keeps silent on this matter.
As a reminder, the Belgian law on the protection of computer programs is similar to the directive of 1991 which it implements and makes liable only persons who engage in the distribution of circumventing devices or services, and not persons who circumvent a technological measure. Violation of the provision is punishable under criminal law by a fine of up to 500.000 €. The criteria for considering circumvention devices as unlawful is, however, stricter since it is illegal to traffic in a device only if the ‘only purpose’ of a device is to circumvention a technological measure protecting a computer program.
8. Miscellaneous & Controversial Subject
Another provision of the Bill is worth being mentioned. Article 79bis, §5, provides that “the technological measures of protection are not allowed to prevent the lawful acquirers of works and other subject matter to use those works according to their normal use”. A injunction procedure, similar to the one guaranteeing the effective enjoyment of exceptions, is granted to users by the Bill. The competent judge can therefore enjoin rightholders “to make the technological measures compliant with that obligation” (article 87bis, §1er, 3)).
This is rather new compared to the directive and results from the case law that arose in
Nothing has been provided to safeguard encryption research or reverse engineering, as recommended in the recitals of the directive, save for a mention in the explanatory memorandum that the protection against circumvention should not prevent the cryptography research. The memorandum also reminds that the legal protection of TM should not inhibit the normal operation and playability of electronic devices and repeats the no mandate clause from the recitals of the directive.
The relationship between levies for private copying and technological measures is addressed in the proposed modification of the article 56 of the Copyright Act that concerns the remuneration for private copy. The Bill proposes that the application or non-application of technological measures referred to in the new article 79bis will be taken into account when determining the levies to be paid to the rightholders for private copies. Such a determination is left for an arrêté-royal (regulatory act).
Author:
Séverine Dusollier
CRID (Centre of Research in Computer Law)
E-mail: severine.dusollier@fundp.ac.be
Last update:
The bill from MP Mr Monfils can be downloaded as PDF format. It is only available in French and Dutch.
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