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The concept of parody and the legitimate interests of parodists and copyright holders

Philippe-LaurentJudgment CJEU, 3 September 2014, Deckmyn and Vrijheidsfonds (C-201/13). Request for a preliminary ruling from the Hof van Beroep te Brussel (Belgium).

Belgian copyright law provides that “once a work has been lawfully published, its author may not prohibit caricature, parody and pastiche, observing fair practices”. This provision, which existed before the adoption of the InfoSoc Directive 2001/29/CE, and which has not been modified by the implementation of the latter, was clearly subject to interpretation (especially the last three words : “observing fair practices”).

Belgian Courts and Tribunals have therefore progressively established many conditions to be met in order to successfu [...]

The ECJ clarifies right to take action against individuals’ imports of unauthorized copies in the EU

Philippe-Laurent“The test in case of sale could therefore be reduced to the following simple question: would there have been an infringement if the seller had been established in the Member State where the buyer resides.”

On 6 February 2014, the Court of Justice of the EU issued a decision in the Blomqvist v Rolex SA Case (C-98/13) that has been welcomed by IP rights owners. It simplifies and clarifies the test that should be run to determine whether goods acquired on-line from a seller established in a non-member state are goods infringing intellectual property rights in the sense of Regulation 1383/2003 of 22 July 2003.

The regulation gives a specific definition to the “goods infringing an intellectual [...]

Embedding is no criminal offence, the Brussels Court of Appeal says

“No need to wait for the ECJ, the Court replied.”

In Belgium, besides being a tort from a civil law perspective, a copyright infringement can also be a criminal offence, on the condition that it is done “with malicious or fraudulent intent”. When copyright infringements are committed by unknown perpetrators (which is quite common on the internet), it is usual to file a complaint with an examining magistrate who is endowed with specific criminal investigation powers.

This is what the producer of “Fait d’hiver” (an Academy award nominee short film) did after noticing that the movie had been entirely uploaded on YouTube and embedded in the pages of two websites, namely and [...]

Belgian Supreme Court: against the tide of the CJEU’s case law on “originality”?

On 26 January 2012, the Belgian Supreme Court decided to quash an appeal decision deeming that “when requiring that a work must show the stamp of the author’s personality in order to benefit from copyright protection, the judges of appeal do not validate their decision in law”. According to the Supreme Court, a literary or artistic work is protected by copyright on condition that it is original in the sense that it is the author’s own intellectual creation, and it is therefore not required that the work carry the stamp of the author’s personality. One should stress that such decision is all the more surprising that the “stamp of the author’s personality” can be considered as ha [...]

SABAM v. Netlog (CJEU C 360/10) … as expected!

The CJEU’s ruling in the Scarlet v. SABAM case (C 70/10) is still fresh in our memories: court injunctions to install global and preventative filtering systems with a view to preventing copyright infringements are precluded. SABAM asked again for the same measures in the framework of the SABAM v. Netlog litigation. Again, the Belgian court referred the question to the CJEU for a preliminary ruling. Again, the CJEU repeated mutatis mutandis its reasoning and reached the same conclusion (C 360/10). Bis repetetita placent?

Not exactly: whereas Scarlet is an ISP, Netlog is a Facebook-like online social network. This brings along several factual differences which could have had consequences as [...]

“In order to fight copyright infringements, ISPs may be asked to render specific websites inaccessible to their subscribers”

This sentence summarizes quite well the decision of the Antwerp Court of Appeal of 26 September 2011 which it is abstracted from.

The Belgian Anti-piracy Federation filed a cease and desist action against Telenet and Belgacom, two Belgian ISPs, in order to make them block The Pirate Bay’s websites in their respective networks.

In first instance, the President of the Commercial Court of Antwerp rejected the claims as he deemed that the requested measures were disproportionate.

The Court of Appeal overruled the decision and granted an injunction on basis of art. 87, §1, al.2 of the Belgian Copyright Act, which transposes art. 8, §3 of the InfoSoc Directive 2001/29/CE, and which provides th [...]

Breach of copyright licence: Precisions of the Belgian Supreme Court on cease and desist actions

In this post, I would like to come back to an interesting decision of the Belgian Cour de Cassation of 7 October 2010, which confirmed that a cease and desist action could be successfully sought against a copyright licensee. As usual, the Supreme Court’s decision is quite concise and does not extensively detail the facts. In short, the decision’s background is a litigation between a television company and a collecting society, where the former refused to pay some royalties to the latter. The collecting society therefore sought a cease and desist injunction against the TV company.

Some relevant paragraphs of the decision can be translated and summarized as follows:

- A cease and desist ac [...]

Belgium: the problem child of the lending right?

On 19 November 1992, the European Council adopted the Directive 92/100/EEC on rental right and lending right and on certain rights related to copyright in the field of intellectual property (now replaced by Directive 2006/115/EC), which provides an exclusive right to authorize or prohibit the rental and lending of originals and copies of copyrighted works. The Directive also provides that Member States may derogate from the exclusive right in respect of public lending, provided that at least authors obtain a remuneration for such lending, and that Member States shall be free to determine this remuneration taking account of their cultural promotion objectives. The Directive had to be transpos [...]

SABAM v. B.K., Supreme Court (Cour de Cassation), 30 March 2011

BELGIUM – In a case of SABAM (the Belgian Society of Authors, Composers and Publishers) versus a counterfeits dealer, the Belgian Supreme Courts finds that in litigations against copyright infringers, collecting societies can prove the existence of management contracts pertaining to some works by solely producing the official repertoire listing that they mandatorily have to keep updated.

For the full text of this case click here

A summary of this case will be posted on soon

A Belgian solution to peer-to-peer: Scylla or Charybdis? The question is still pending…

Two contradictory legislative proposals have been quite recently submitted for discussion at the Belgian Parliament, which should implement solutions to the thorny file-sharing issue.

On the one hand, Senators Morael and Pyryns proposed on 9 December 2010 [Doc 5-590/1] a law “aiming at adapting the perception of copyright to the technological evolution while preserving privacy rights of the Internet users”. This proposal aims at establishing a “global” licensing scheme that would authorize file sharing amongst internet users through peer-to-peer. Remunerations would be negotiated between stakeholders, and rendered compulsory by way of a royal decree (if negotiations fail, the King wo [...]

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