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Copyright in the new Belgian Code of Economic Law: codification and new regulation

The Belgian legal order has recently welcomed a new legal code:  the Code of Economic Law (CEL).  Laws are not systematically arranged in codes in Belgium: there are some codes (such as the judicial code, the criminal code, codes of various types of taxes etc.) as well as countless separate laws, acts and regulations for its many levels of governance.  Now we have a Code of Economic Law (here in Dutch and in French), which is meant to gather in one volume various regulations pertaining to the field of “economic law”, such as competition law, consumer protection, product and service safety, e-commerce, banking and finance, specific enforcement proceedings, etc.

The Code of Economic La [...]

Red light for Sabam’s pricing system for Internet access providers: up- and downstream IAP traffic do not constitute communication or making a work available to the public

Rosario-Debilio2On the 13th March 2015, the President of the Brussels French speaking Court of First Instance pronounced a judgment to the detriment of Sabam, an important collective management organisation in Belgium. In 2011 Sabam decided to claim a fee from Internet access providers in exchange for a licence which allows these providers to communicate copyright protected works to the public (see here). I shall first discuss the control on the pricing system set up by Sabam. I shall then study how electronic communication law’s notions were used to define the scope of this pricing system. A final discussion will be dedicated to the rest of the procedure in this case setting the Belgian State against Sab [...]

EAÜ v MTÜ Safari Seiklused: An interesting Estonian case about damages awardable for copyright infringement

Elise-Vasamae-KCBIn its recent judgment in EAÜ v MTÜ Safari Seiklused (the “Safari” case), the Estonian court held that where a person has signed a licence agreement with an authors’ collecting society, with the intention of using the rights of authors commercially for a public performance, they must unquestioningly fulfil all of the terms of that agreement. According to the licence agreement signed between an Estonian concert organiser, MTÜ Safari Seisklused, and the Estonian Authors’ Society (EAÜ) the amount of the licence fee did not depend on how many authors EAÜ in fact represents. Therefore, although in this case EAÜ represented only one author from three whose works were being played publicl [...]

Why the reform of the Spanish law has been contested in the Spanish Constitutional Court

Pablo HernandezThe latest large-scale reform of the Spanish Copyright Act was published on 5 November 2014.  The key aspects of the reform are discussed here.  The bulk of the opposition to the reform contends that two provisions of the Act, namely, the new regulation for private copying and the imposition of a “one-stop shop” system, breach the Spanish Constitution.    

The current Spanish governing party decided as soon as they came to power, at the end of 2011, to abolish private copy payments by consumers in Spain in order to fulfil a campaign pledge to voters.  Since no one wanted to make private copying into an illegal practice, the solution was to keep the copyright limit and to add the [...]

Spain: APM v. SGAE, Spanish National Competition Commission, Resolution S/0460/13, 6 November 2014

In a recent decision, the Spanish Market and Competition Commission (CNMC), imposed a fine of 3.1 million Euros on the Spanish collecting society, SGAE, for demanding an excessive fee for concert licensing.

This decision is of particular interest because the Spanish competition authority has taken a new approach when interpreting the European law on the method of analysing the fairness of a fee.  This could lead to considerable uncertainty if this line of interpretation should become established.

A full summary of this case has been published on Kluwer IP Law

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France: TF1, Court of Cassation of France, First Civil Law Chamber, 13-22401, 13 November 2014

In this judgment, the French Supreme Court ruled that an author who is a member of a collecting society may not take action in infringement cases to protect his economic rights, except in the case of a deficiency on the part of said collecting society.

In the same judgment, the Supreme Court ruled that publishing agreements for the assignment of rights of an author must be in writing, and it is not possible to demonstrate the existence of an agreement by reference to the behaviour of the authors as regards the exploitation of the work.

A full summary of this case has been published on Kluwer IP Law

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France: Do members of collecting societies retain the right to sue?

Brad-SpitzArticle L.321-1 paragraph 2 of the French Intellectual Property Code (‘IPC’) provides that collecting societies are entitled to take legal action to defend the rights for which they are responsible under their articles of association (by-laws). Collecting societies may therefore take legal action to defend their repertoires and those of foreign collecting societies that they manage, whether before the civil courts (Supreme Court, 22 March 1988, 86-11874) or the criminal courts (Supreme Court, 25 October 1988, 86-91720). In its judgment of 13 November 2014 (13-22401), the French Supreme Court answered a very important question: do authors who are members of collecting societies retain the [...]

Spain: An excessive fee for concert licensing

Pablo HernandezCompetition and collecting societies: a special application of European legal doctrine in Spain.

“It seems to utilise the previous methods in a forced manner, even though those methods had led to very different conclusions on a European level.”

In a recent decision by the Spanish Market and Competition Commission (CNMC), once again penalising SGAE with a fine of 3.1 million Euros for demanding an excessive fee for concert licensing, an attempt was made to apply European doctrine. 

The decision is particularly interesting because the Spanish competition authority has interpreted European legal doctrine on the method of analysing the fairness of a fee and does so with a personal touch th [...]

UK: Extended Collective Licensing

Dinusha Mendis - Victoria StoboOn the 1st October 2014, the Copyright and Rights in Performances (Extended Collective Licensing) Regulations 2014 came into force in the UK.1  

Licensing bodies and collecting societies already operate within the UK, providing rights management and licensing services for their rightsholder members across a range of sectors including publishing, art and design, music and performance.2  Extended Collective Licensing (ECL) occurs where a collecting society is granted permission to license specific kinds of copyright works across an entire sector, thereby representing the interests of non-member rightsholders in addition to those of their own members. ECL was first developed in the Nordic co [...]

CJEU in OSA: a victory for right holders against free use and of CMOs against the European Commission?

Sylvie-Nérisson“The answers from Luxembourg were much awaited not only due to the questions being interesting as such, but also because academia, the European Commission and the CJEU do not see eye to eye on these currently highly debated issues.”

In response to questions lodged by a Czech court (Krajský soud v Plzni) in a preliminary ruling procedure ( C‑351/12), the Court of Justice of the European Union decided earlier this year that there is no flexibility in the interpretation of the Infosoc directive (2001/29/EC) regarding limitations and exceptions to exclusive rights (points 40-41) and that the statutory monopoly position of a CMO complies with the requirements of the Services directive (200 [...]

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