Copyright fit for the internet age? Belgium implements the DSM directive (Part 2: New neighbouring right for press publishers & four new mandatory exceptions to copyright)
On 1 August 2022, the Belgian law transposing the Directive on Copyright in the Digital Single Market (“DSM directive”) (EU Directive 2019/790) was published in the Belgian State Gazette (NL / FR). The new law enters into effect immediately (with the exception of a few provisions).
In our blog series highlighting the DSM directive’s implementation, we will each day put a spotlight on the key changes in four areas brought by the Belgian implementation of the DSM directive.
In our first blog post of this series, we discussed the DSM directive’s background and its Belgian implementation, as well as its most controversial provision, article 17.
Today, we will tackle two topics. First, we will touch upon article 15 of the DSM directive, which concerns a new neighbouring right for press publishers.
Second, we will reflect on the creation of four new mandatory copyright exceptions directly linked to developments arising from the use of digital technology.
A new neighbouring right for press publishers
Only slightly less controversially than article 17 of the DSM directive (which sets out a filtering obligation on OCSPs) has been the introduction in article 15 of a new neighbouring right for press publishers for the online use of their content by those OCSPs. Article 15 has been transposed in Belgium in articles XI.216/2-216/3, XI.217-XI.217/1, XI.218/1 and XI.245/7 of the Belgian Code of Economic Law (CEL).
In brief, this development amounts to a remuneration right for the online reproduction and making available of news content produced by news publishers by big commercial concerns like Google News. However, it does not apply to hyperlinking or individual words and very short extracts, nor to the use by individual users.
The DSM directive and its Belgian implementation ensure that the authors of works that are incorporated in a press publication are entitled to an appropriate share of the remuneration that is received by the press publishers from the OCSPs.
To facilitate the determination of this appropriate share, articles XI.216/2 §3 and §7 CEL provide for an obligation of transparency by the OCSPs towards press publishers and on the part of the press publishers towards the authors.
Four new mandatory exceptions to copyright
Also, four new mandatory exceptions to copyright have been introduced. These are directly linked to developments arising from the use of digital technology and recognise the (scientific and educational) value of that use. These new exceptions are added to the list of already existing exceptions (such as private copy, quotation, criticism, review, parody or pastiche), in which case no authorisation (or license) from the rights holder needs to be obtained:
1) Text and data mining (TDM) for research purposes.
This exception covers reproductions and extractions made by public research bodies and cultural heritage institutions for the purpose of searching texts and data on works or other protected materials to which they have lawful access, provided this is for scientific research purposes (article 3 of the DSM directive, transposed into Belgian law in articles XI.191/1, XI.191/2, XI.217/1 and XI.310 CEL);
2) A general TDM exception for other (private) purposes.
This exception covers reproductions and extractions of lawfully accessible works and other protected materials for the purpose of (private) text and data mining, as long as they have not been expressly reserved by the right holder (article 4 of the DSM directive, transposed into Belgian law in articles XI.190, XI.191, XI.217, XI.299 and XI.310 CEL). This exception should be taken into account when reviewing General Terms and Conditions;
3) Illustration of cross-border teaching and educational purposes.
This new exception, focusing on the digital use of works and other protected matters exclusively for the purpose of illustration in the context of cross-border teaching, joins with the already existing exception for teaching purposes (article 5 of the DSM directive, transposed into Belgian law in articles XI.191/1, XI.191/2, XI.217/1, XI.240, XI.299 and XI.310 CEL); and
4) Preservation of cultural heritage.
This exception concerns reproductions (digitisations) by cultural heritage institutions (libraries, museums, etc.) of works or other protected objects that are permanently in their collections, for the purpose of conserving these works and other protected objects (article 6 of the DSM directive, transposed into Belgian law in articles XI.191/1, XI.191/2, XI.217/1, XI.240, XI.299 and XI.310 CEL).
On Monday there will be our third and final blog post of the series concerning the new rules governing copyright contracts.
In the meantime, do not hesitate to reach out to our IP team for further guidance.
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