Copyright Comparative Guide -

Compare this Guide in other jurisdictions?

1 Legal framework

1.1 What legislative and regulatory provisions govern copyright in your jurisdiction?

In Belgium, the Code of Economic Law governs copyright and neighbouring rights, especially:

Articles XI.165 to XI.318/12 (eg, existence of copyright and neighbouring rights, contractual issues); and
Articles XI.334 to XI.336 (enforcement of IP rights and infringement).

The jurisdiction of the courts to hear copyright cases is governed by:

Articles 573, 575 and 633quinquies of the Judicial Code; and
Articles XVII.14 to XVII.17 of the Code of Economic Law.

Finally, many royal decrees govern matters such as:

remuneration rights; and
copyright collecting societies.

1.2 Is there common law protection for copyright in your jurisdiction?

Belgium has a civil law system, with three major sources of law:

legislation;
customary law; and
general principles of law.

However, the primary source of law is legislation and case law carries less weight than the three primary sources of law, as Belgium does not have a system of legal precedent. That said, case law – especially that of the Supreme Court – has an important influence in interpreting the legislation.

1.3 Do any special regimes apply to specific types of works or subject matter (eg, software; data and databases; digital works; indigenous works)?

Although heavily inspired by the lex generalis of copyright (governing literary and artistic works), some lex specialis applies to:

software;
databases; and
orphan works.

1.4 Which bilateral or multilateral instruments or treaties with effect in your jurisdiction (if any) have relevance for copyright protection?

International treaties:
- The Berne Convention for the Protection of Literary and Artistic Works;
- The Universal Copyright Convention 1971;
- The Agreement on Trade-Related Aspects of Intellectual Property Rights;
- The World Intellectual Property Organization Copyright Treaty; and
- The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.
European regulations:
- Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June 2013 concerning customs enforcement of intellectual property rights and repealing Council Regulation (EC) No 1383/2003;
- Regulation (EU) 2017/1128 of the European Parliament and of the Council of 14 June 2017 on cross-border portability of online content services in the internal market; and
- Regulation (EU) 2017/1563 of the European Parliament and of the Council of 13 September 2017 on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled.
European directives:
Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission;
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases;
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society;
Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art;
Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights;
Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property;
Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights;
Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs;
Directive 2011/77/EU of the European Parliament and of the Council of 27 September 2011 amending Directive 2006/116/EC on the term of protection of copyright and certain related rights;
Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works;
Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market;
Directive (EU) 2017/1564 of the European Parliament and of the Council of 13 September 2017 on certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society;
Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC; and
Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.

1.5 Which bodies are responsible for implementing and enforcing the copyright regime in your jurisdiction? What is their general approach in doing so?

The federal legislature is responsible for enacting rules with respect to intellectual property. The Federal Public Service (FPS) Economy and the courts are responsible for enforcing these rules.

Their general approach is to protect the rights of copyright holders and to prevent infringement of their intellectual property. This includes taking legal action against individuals or businesses that are found to be:

using copyrighted material without permission; or
committing unfair market practices with respect to violation of copyright.

The courts in Belgium also play a key role in enforcing copyright rules by:

hearing cases brought by copyright holders against alleged infringers; and
issuing judgments and orders to stop the infringement and compensate the copyright holder.

The FPS Economy also works to educate the public about copyright rules and regulations.

Overall, the approach in Belgium is to:

take copyright infringement seriously, as per the applicable European and international provisions; and
provide legal remedies for copyright holders whose rights have been violated.

2 Copyrightabilty

2.1 What types of works qualify for copyright protection in your jurisdiction?

Every production in the literary, scientific and artistic domain, whatever the mode or form of its expression, such as:

books, pamphlets and other writings (eg, user manuals, terms and conditions);
lectures, addresses, sermons and other works of the same nature;
dramatic or dramatico-musical works;
choreographic works and entertainments in dumb show;
musical compositions with or without words;
cinematographic works to which are assimilated works expressed by a process analogous to cinematography;
works of drawing, painting, architecture, sculpture, engraving and lithography;
photographic works to which are assimilated works expressed by a process analogous to photography;
works of applied art;
illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science;
graphic user interfaces of programs;
translations, adaptations, arrangements and other alterations thereof;
collections of literary or artistic works, such as encyclopaedias and anthologies; and
databases and software.

2.2 What are the requirements for copyrightability?

Two cumulative conditions must be satisfied for a work to be copyrightable:

The work must be original, in the sense that it is the author's own intellectual creation; and
The work must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.

2.3 What types of works are ineligible for copyright protection in your jurisdiction?

Ideas;
Procedures;
Methods of operation or mathematical concepts as such;
The taste of a food product; and
Official acts of a public authority and sporting events.

Speeches made before deliberative assemblies, at public court hearings or political meetings are copyrightable works, although they may freely be reproduced and communicated to the public by anyone.

3 Scope of protection

3.1 What legal rights are conferred by copyright in your jurisdiction?

Economic rights: Economic rights can be divided into two main groups:

the reproduction right; and
the right of communication to the public.

Reproduction right: The reproduction right is the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part.

Stricto sensu, the reproduction right allows the material reproduction of a work, such as:

making an identical copy;
photocopying;
scanning;
photographing;
digitalising; or
transcribing verbatim.

Sensu lato, the reproduction right allows for certain exceptions, such as:

adaptations, including:
- photomontage;
- parody;
- the use of original elements from an initial work; or
- the adaptation of a novel into a film; and
translations.

With respect to software, acts of reproduction include the permanent or temporary reproduction of a computer program – more precisely, of its source and object code – by any means and in any form, in part or in whole, of a computer program – such as loading, displaying, running, transmitting, storing, translating, adapting, arranging or making any other alteration to the program – and the reproduction of the results thereof.

The owner of a copyright also has:

the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise of the original or copies of the copyrighted work (‘distribution right'); and
the right to authorise or prohibit rental and lending of the original or copies of the copyrighted work (‘rental and lending right').

These rights pertain only to physical copies of the work.

In Belgium, owners of a copyrighted work also enjoy:

a ‘destination right', meaning that they may control the marketing and distribution arrangements of the work; and
the right to control how the recipient of a work may use it – for example, if copyright owners only allow the sale of copies of their work in lots or in batches, the purchaser of a lot may not then sell individual parts of that lot.

Finally, owners of copyright enjoy a resale right to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work.

Right of communication to the public: The right of communication to the public is the exclusive right to authorise or prohibit any communication to the public of a work, by wire or wireless means, including the making available to the public of a work in such a way that members of the public may access it from a place and at a time individually chosen by them.

The public can either be present at the place where the copyrighted work is communicated/performed (eg, theatrical performance, concert, art exhibit) or not (eg, video or music ‘on demand', radio, television).

Moral rights: Independently of the author's economic rights, and even after the transfer of those rights, the author has the right to:

decide whether the work is complete and can be disclosed to the public or not (‘right of disclosure');
right to communicate the work to the public under his own name, under an alias or anonymously, as well as the right to refuse improperly assigned authorship (‘right of authorship'); and
preserve the integrity of the work, object to any distortion, mutilation or other modification of, or other derogatory action (alteration, destruction, decontextualization) in relation to the work, which would be prejudicial to his or her honour or reputation (‘right to preserve the integrity of the work').

3.2 Are there special rules that limit the scope of protection for works that are useful/utilitarian/functional in your jurisdiction?

Subject matter that satisfies the condition of originality may be eligible for copyright protection, even if its realisation has been dictated by technical/functional utilitarian considerations, provided that it being so dictated has not prevented the author from reflecting his or her personality in that subject matter, as an expression of free and creative choice.

However, the criterion of originality cannot be met by components of subject matter which are differentiated only by their technical function. Where the expression of those components is dictated by their technical function, the different methods of implementing an idea are so limited that the idea and the expression become indissociable. Protecting ideas by copyright would amount to making it possible to monopolise ideas, to the detriment of technical progress and industrial development in particular.

If there is no general rule limiting the scope of protection for functional works, these types of works must meet the criterion of originality to be copyright protected, meaning that even if the creation of the work has been dictated by utilitarian considerations, these must not prevent the author from reflecting his or her personality and instilling originality in the work.

3.3 Are neighbouring rights protected in your jurisdiction? If so, please outline the applicable regime.

Neighbouring rights are protected by Articles XI.204 and following of the Code of Economic Law. The owner of such rights enjoys the same rights as the owner of copyright (reproduction, communication to the public and moral rights, except the right of disclosure), although neighbouring rights pertain to:

performers (eg, singers, dancers, circus artists, magicians, actors);
phonogram producers;
producers;
the first fixation of a film; and
broadcasting organisations.

Please see question 3.1 for more information on the reproduction right, the right of communication to the public and moral rights (mutatis mutandis).

Neighbouring rights also guarantee the right to remuneration of performers. In these cases, performers cannot prohibit specific uses of their performances, but in return have a right to remuneration (as defined by law).

3.4 Are moral rights protected in your jurisdiction? If so, please outline the applicable regime.

Moral rights are subject to Article XI.165, Section 2 of the Code of Economic Law. Please see question 3.1 for a description of those rights.

Pursuant to Article XI.165, Sections 2(1) and 2:

these moral rights may not be assigned; and
the owner may provide a general and blanket waiver thereof.

3.5 Are any blanket exceptions to copyright infringement (eg, fair use/dealing) or specific exceptions to copyright infringement (eg, backup copies, interoperability, right of repair) available in your jurisdiction? If so, under what conditions do they apply?

In the European Union, the exceptions and limitations to copyright may be applied only in certain special cases which:

do not conflict with the normal exploitation of the work or other subject matter; and
do not unreasonably prejudice the legitimate interests of the rights holder.

As such, the author of a work may not prohibit:

quotations for purposes such as criticism or review, provided that:
- they relate to a work or other subject matter which has already been lawfully made available to the public;
- the source, including the author's name, is indicated (unless this turns out to be impossible); and
- their use is in accordance with fair practice and to the extent required by the specific purpose;
temporary acts of reproduction:
- which are transient or incidental and an integral and essential part of a technological process;
- whose sole purpose is to enable:
- - a transmission in a network between third parties by an intermediary; or
  - a lawful use of a work or other subject matter to be made; and
- which have no independent economic significance;
reproduction and communication to the public of a work displayed in a place open to the public, where the aim of the reproduction or the communication is not the work itself;
reproductions on paper or any similar medium effected by the use of any kind of photographic technique or by some other process having similar effects, with the exception of sheet music;
reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial;
caricature, parody or pastiche;
acts of reproduction made by publicly accessible libraries, educational establishments, museums or archives which are not for direct or indirect economic or commercial advantage;
ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts;
reproductions of broadcasts made by social institutions pursuing non-commercial purposes, such as hospitals or prisons;
use for the purpose of advertising the public exhibition or sale of artistic works, to the extent necessary to promote the event, excluding any other commercial use;
certain acts of reproduction in favour of persons who are blind, visually impaired or otherwise print-disabled;
reproductions in order to carry out text and data mining of works;
reproduction and communication to the public of works for the purposes of public safety or to ensure the proper conduct of administrative, parliamentary or judicial proceedings, or to ensure adequate coverage of such proceedings;
certain acts for education and scientific research purposes (eg, citations, free performance in an educational setting, use for illustrative purposes);
lending of literary works, databases, photographic works, musical works, sound works and audiovisual works organised for educational and cultural purposes by public authorities; and
use of orphan works by libraries, museums, archives and similar.

3.6 How are derivative works protected in your jurisdiction? Who is the owner of a derivative work?

Owners of derivative works are the natural persons who created the work. They enjoy the same rights as owners of the underlying work, provided that they have obtained the authorisation of the owner to create the derivative work.

3.7 Can copyrightable works also be protected by other IP rights (eg, trademarks and designs) in your jurisdiction?

Copyrightable works may also be protected under other IP instruments, such as trademarks, design rights, patents and so on. However, as stated in question 2.2, whereas copyright protects the expression of an original creation in a manner which makes it identifiable with sufficient precision and objectivity, a trademark right protects a distinctive sign, a design right protects the aspect of a product and a patent protects the novelty and inventive step of an invention – all regardless of the originality of the work that is subject to the trademark, design or patent.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Copyright Comparative Guide

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