On 3 March 2005, the Belgium House of Representatives adopted legislation to implement European Directive 2001/29/EC of 22 May 2001 on the harmonistion of certain aspects of copyright and related rights in the information society.

The Directive prescribes that all EU Member States should implement the Directive before 22 December 2002. Since Belgium did not comply with this obligation, the European Commission summoned Belgium before the European Court of Justice.

In a judgment of 18 November 2004, the European Court of Justice declared that Belgium failed to fulfill its obligations under the Directive.

Nearly four months after the conviction by the European Court of Justice, the House of Representatives has now adopted the proposal. The proposed legislation will change the Belgian legislation regarding copyright and databases. More precisely, it deals with the right of reproduction, the right of communication to the public and the distribution right as well as the exceptions thereto.

With regard to the distribution right, the proposed legislation foresees in an explicit provision reserving this right for the copyright holder. This is not the case in the current version of the Belgian Copyright Act of 30 June 1994. In practice however, it is generally accepted that the distribution right is comprised in the broadly interpreted right of reproduction, so that this explicit mention will probably not have many practical implications. The proposed legislation further provides for fair and equitable remuneration for reproductions for private use. In this respect, the proposed tax on certain categories of computers, to be implemented by Royal Decree, has been heavily debated in the House of Representatives. Once implemented, this tax will have to be paid on specific categories of computers sold in Belgium, whether or not the person buying the computer will in fact make reproductions of copyright protected works. The question arises whether such a tax will become effective soon, since there appears to be little will within the government to implement the Royal Decree.

Another innovation is the criminal sanction for some types of circumvention of effective technological measures designed to prevent or restrict acts which are not authorized by the copyright holder.

The Senate has evoked the adopted proposal on 9 March 2005 and will now discuss it as a matter of urgency. It is expected that there will be more clarity at the end of April. Notwithstanding the implementation process, the European Commission announced on 21 March 2005 that it will launch infringement proceedings against Belgium based on non-compliance with the judgment of the European Court of Justice.

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