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The Antwerp Court of Appeal has recently ruled on a series of cases (December 2023 – October 2024) concerning online copyright infringements. These cases often originated from an intermediary internet enterprise employing search software to detect potential infringements and subsequently claim damages in the authors names. In January 2025, the Ghent Court of Appeal aligned itself with the reasoning of the Antwerp Court.
Key takeaways
- High originality threshold: In its rulings, the courts have emphasized the need for substantive proof, requiring a specific object and free creative choices, as recognized in the CJEU's Painer judgment (C-145/10, 1 December 2011).
- Damage calculation principles: Furthermore, the courts applied the principles governing damages calculation, reiterating the prohibition of punitive damages under Belgian law and confirming that restitution in integrum remains the guiding principle. The assessment of damages must primarily reflect the license fee the copyright holder would have charged, subject to the obligation to mitigate losses and avoid abuse of rights.
- Scrutiny on enforcement intermediaries: The courts also provided valuable insights into the role of copyright enforcement intermediaries. While acknowledging their function in empowering individual creators, it emphasized that their financial interest necessitates rigorous safeguards to ensure that claims correspond to actual damages. The courts criticized aggressive enforcement practices, including delayed and vague cease-and-desist letters, excessive claims, and lack of genuine settlement negotiations.
- Transparent cease-and-desist letters: The Antwerp court emphasized that an initial cease-and-desist letter must meet minimum transparency standards. It must specify the copyright holder's identity, the allegedly infringed work, its originality, and details of the alleged infringement. Additionally, a reasonable period must be granted to cease the infringement. The rights holder must either provide concrete evidence of the damages suffered or estimate them on a lump-sum basis, applying the same principles of reasonableness and fairness as a court.
These rulings highlight the need for claimants to meet a well-defined originality threshold and to substantiate their infringement claims with robust evidence.
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