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Belgium fully implemented the provisions of the DSM Directive into national law on 19 June 2022. Most of the changes to the Code of Economic Law entered into force on 1 August 2022.
Procedure:
The national implementation process has been far from public or inclusive. The government did not organize any public consultation on the implementation before preparing a draft implementation law. The draft law was prepared by the IP Advisory Council, where civil society organizations are practically absent, and only a selected group of stakeholders were invited to comment on the draft. The national implementation law was approved by the Parliament, through an ordinary legislative procedure.
Article 17:
The Belgium implementation of Article 17 mostly restates the text of the Directive. As such it contains only a general requirement not to limit legitimate uses, but does not establish any specific ex-ante safeguards. It does not contain any additional transparency provisions and it does not narrow down the definition of platforms affected by these rules. The only deviation to the text is that OCSSPs must indicate, in their general terms and conditions of use, two or more mediators that can be contacted for out-of-court settlements of any dispute relating to the blocking of access to or the removal of uploaded materials. Furthermore, the King has the ability to provide further rules for the application of several provisions, but there is no indication yet if this power will be used.
Other:
The Belgium lawmaker maintained its existing non-remunerated education exceptions, which already allowed the reproduction and communication to the public of protected materials (other than musical scores) for illustration for teaching and scientific research, as permitted by Article 5(3)(a) of the InfoSoc Directive, while implementing new exceptions covering the reproduction and communication to the public of protected materials (other than musical scores) in the context of their digital use for the purposes of illustration for teaching, as foreseen in Article 5 of the DSM Directive. While the new exceptions possibly restrict the scope of the existing exceptions, unnecessarily, they are not subject to remuneration nor to license availability. It should be noted, however, that the implementation goes partially against Article 5, since musical scores are completely carved out from the scope of the exceptions, regardless of whether or not a license is available for those materials.
Article 14 has not been transposed, since unoriginal reproductions were not protected under the existing Belgium law.
The implementation of Article 15 does not include all the limits foreseen in the DSM Directive: scientific and academic publications are excluded from the definition of press publications; the right does not apply to the use of individual words and very short extracts nor to acts of hyperlinking; the right cannot be invoked against uses authorized by a non-exclusive license nor against the use of public domain works; and the right is subject to the exceptions and limitations to copyright laid out in the national law. The national law does not expressly state that the right does not apply to private or non-commercial uses by individual users, nor does it clarify that the right cannot be invoked against uses authorized by non-exclusive licenses.
Bonus:
In the context of Article 17, authors and performers are granted a non-waivable and non-transferable right to obtain remuneration for communications to the public by OCSSPs, subject to collective management.
Belgium has fully implemented the provisions of the DSM Directive into national law on the 19th of June 2022. The implementation law was adopted following an ordinary legislative process, but the implementation process was far from public or inclusive. The government did not organize any public consultation on the implementation before preparing a draft implementation law and only a selected group of stakeholders were invited to comment on the government proposal.
Belgium maintained its existing non-remunerated exceptions for education and scientific research purposes, while implementing exceptions based on Article 5 of the DSM Directive, creating an unnecessary overlap in terms of scope of protection. The new education exceptions are not subject to remuneration nor to license availability. It should be noted, however, that the implementation goes partially against Article 5, since musical scores are completely carved out from the scope of the exceptions, regardless of whether or not a license is available for those materials.
The transposition of Article 17 does not contain any specific ex-ante safeguards for users' rights. The King has the ability to provide further rules for the application of the provision, but there is no indication if this power will be used.
Article 14 has not been transposed, since unoriginal reproductions were not protected under the existing Belgium law. The scope of the new press publishers’ right contains some, but not all, of the limits foreseen in the DSM Directive.
While transposing the Directive, the national lawmaker decided to improve the position of certain stakeholders: authors and performers have been granted a non-waivable remuneration right for communications to the public by OCSSPs; and press publishers benefit from an obligation imposed on content aggregators to conclude licensing agreements with them to publish their publications.
Local partners: our local partners have been Wikimedia BE and OKFN BE.
For more information please see our implementation tracking page for Belgium.
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