Belgium: Court Rejects Copyright Levy On ISPs

Last Updated: 23 October 2015
Article by Guillaume Couneson and Clément Legrand

The internet has created significant challenges for rights holders seeking to prevent, or at least obtain some compensation for, the infringement of their works online. The Belgian courts have now rejected the latest innovation, i.e. to impose a copyright levy directly on internet service providers.

SABAM: From filtering to copyright levy

SABAM is one of the major Belgian authors' rights collecting societies. It was previously in the headlines for its failed attempt to force ISPs to implement general filtering on their network to prevent copyright infringement (see Scarlet Extended SA v SABAM C-70/10, discussed here).

SABAM's new approach was to send internet service providers a letter requesting the payment of a levy of 3.4% of the annual subscription fees for each internet user. This levy would be due in return for authorising the communication to the public of the protected works in SABAM's catalogue by those internet service providers.

However, the Belgian Ministry of Economy, which oversees SABAM, considered this to overstep Belgian copyright law. It sought an injunction against SABAM to suspend this initiative; a move supported by the main Belgian internet service providers.

Is there a communication to the public?

The decision hinged on whether the activities of internet service providers can be qualified as a "communication to the public" within the meaning of Belgian and European copyright law.

SABAM argued the internet service providers' activities amount to a communication to the public which is different from the original communication to the public by the originator of the communication, e.g. either another internet user or service providers such as Youtube or Spotify.

In contrast, the Belgian State and the internet service providers considered that the internet service providers only have a technical and passive role in the communication to the public and that SABAM's distinction is artificial. In reality, there is only one single communication to the public by the originator of the communication.

Decision of the Court

In March 2015, the President of the Brussels Court of First Instance rejected SABAM's arguments. In relation to:

  • the uploading of protected works, the court considered that the transmission of content from a user's computer to an internet service provider does not qualify as a communication to the public. Internet service providers cannot be considered as a "public" as defined under EU and Belgian copyright law (i.e. "public" means an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons).
  • the downloading of protected works, the court considered that internet service providers only act as technical intermediaries and do not initiate a communication to the public distinct from the original communication.

Accordingly, SABAM's payment request violates Belgian copyright law as there is no legal basis for such request absent a communication to the public.

Conclusion

The Brussels Court of First Instance recognises the collection of royalties directly with the internet service providers would be convenient from a technical perspective, but this alone is not sufficient. It also points SABAM to the originators of the communications to the public as the persons owing royalties, acknowledging that to collect those royalties remains very challenging.

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.

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