Machine Translation of "Law On The Integration Of Book Xi 'intellectual Property' In The Code Of Economic Law, And Bearing Insertion Of Definiti..." (Belgium)

Law On The Integration Of Book Xi 'intellectual Property' In The Code Of Economic Law, And Bearing Insertion Of Definitions Specific To The Book Xi In Books I, Xv And Xvii Of The Code (1)

Original Language Title: Loi portant insertion du livre XI "Propriété intellectuelle" dans le Code de droit économique, et portant insertion des définitions propres au livre XI dans les livres I, XV et XVII du même Code (1)

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belgiquelex.be - Carrefour Bank of Legislation

19 AVRIL 2014. - An Act to insert Book XI "Intellectual property" into the Economic Law Code, and to incorporate the definitions specific to Book XI into Books I, XV and XVII of the same Code (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I. - General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER II. - The Economic Law Code
Art. 2. In Book I, Title 2, of the Economic Law Code, a chapter 9 is inserted as follows:
"Chapter 9. - Specific definitions in Book XI
Art. I.13. The following definitions are applicable to Book XI:
1° Paris Convention: the Convention for the Protection of Industrial Property, signed in Paris on 20 March 1883 and approved by the law of 5 July 1884, including each of its revised Acts ratified by Belgium;
2° Bern Convention: the Bern Convention for the Protection of Literary and Artistic Works of 9 September 1886, supplemented in Paris on 4 May 1896, revised in Berlin on 13 November 1908, completed in Bern on 20 March 1914 and revised in Rome on 2 June 1928, in Brussels on 26 June 1948, in Stockholm on 14 July 1967 and in Paris on 24 July 1971, made in Paris on 24 July 1971;
3° TRIPS Agreement: the Agreement on Trade-Related Aspects of Intellectual Property Rights, which constitutes Annex 1^reC of the Agreement establishing the World Trade Organization, signed in Marrakech on 15 April 1994 and ratified by law of 23 December 1994;
4th World Trade Organization: the organization established by the Agreement establishing the World Trade Organization, signed in Marrakech on 15 April 1994 and ratified by the law of 23 December 1994;
5° Office: the Office of Intellectual Property at the Federal Public Service Economy;
6° database: a collection of works, data or other independent elements, arranged in a systematic or methodical manner and individually accessible by electronic means or otherwise;
7° technical measures: any technology, device or component that in the normal course of operation is intended to prevent or limit in respect of works or services or databases, acts not authorized by copyright holders or neighbouring rights or database producers.
Art. I.14. The following definitions are applicable to Book XI, Titles 1 and 2:
1° Treaty of Cooperation: the Patent Cooperation Treaty, made in Washington on 19 June 1970 and approved by the Act of 8 July 1977;
2° European Patent Convention: the Convention on the Grant of European Patents, made in Munich on 5 October 1973, approved by the Act of 8 July 1977, as amended by the Act revising the Convention on the Grant of European Patents, adopted in Munich on 29 November 2000 and approved by the Act of 21 April 2007;
3rd Act of 10 January 1955: the law relating to the disclosure and implementation of inventions and secrets of factory relevant to the defence of the territory or the security of the State;
4° European Patent Office: the European Patent Office established by the European Patent Convention;
5th Register: the Register of Invention Patents and Additional Certificates of Protection;
6° compendium: the Compendium of Invention Patents and Supplementary Certificates of Protection;
7° biological material: a substance containing genetic information that is self-reproducible or reproducible in a biological system;
8° microbiological process: any process using a microbiological substance, involving an intervention on a microbiological substance or producing a microbiological substance;
9° essentially biological process for obtaining plants or animals: process of obtaining plants or animals consisting entirely of natural phenomena such as crossing or selection;
10° written: a series of intelligible, signed and accessible signs that may be consulted at a later date, regardless of their support and transmission modalities;
11° signature: a handwritten or electronic signature. When the signature is electronic, the King determines the mechanism(s) to presume that the identity of the signatory and the integrity of the act are guaranteed;
12° Regulation 1257/2012: Regulation No. 1257/2012 of 17 December 2012 of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of a unitary protection conferred by a patent;
13° the European patent: a patent granted by the European Patent Office ("EPO") in accordance with the rules and procedures provided for in the European Patent Convention, regardless of whether or not the patent enjoys the unitary effect under Regulation 1257/2012.
14° the European patent with unitary effect: the European patent to which a unitary effect is conferred under Regulation 1257/2012;
15° the European patent without a unitary effect: the European patent to which no unitary effect is conferred under Regulation 1257/2012;
16° the unified jurisdiction of the patent: the common jurisdiction of the Contracting States established by the Agreement on the Establishment of a Unified Patent Court, signed on 19 February 2013.
Art. I.15. The following definitions are applicable to Book XI, Title 3:
1° Variety: a plant set of a single botanical taxon of the lowest known rank that, whether or not it meets the conditions for the granting of a right of obeyer, may be
- defined by the expression of characters resulting from a certain genotype or combination of genotypes,
- distinguished from any other plant set by the expression of at least one of the said characters, and
- considered an entity in respect of its ability to be reproduced without change;
2° Variable components: whole plants or parts of plants to the extent that these parts can produce whole plants;
3° written: a series of intelligible, signed and accessible signs, which can be viewed at a later date, regardless of their support and transmission modalities.
Art. I.16. The following definitions are applicable to Book XI, Title 5:
1° Control Service: the control service of copyright and related rights management companies with the Federal Public Service Economy;
2° legitimate user: a person who performs acts authorized by the author or admitted by law;
3° cable retransmission: the simultaneous, unchanged and integral cable retransmission or an ultra-short wave system for the reception by the public of an initial, wireless or wireless transmission, including satellite, of television or radio programs intended to be captured by the public;
4° Regulatory Service: the regulatory service of copyright and neighbouring rights to the Federal Public Service Economy.
Art. I.17. The following definitions are applicable to Book XI, Title 7:
1st legitimate user: the person who performs extraction and/or reuse acts authorized by the database producer or permitted by law;
2° producer of a database: the natural or legal person who takes the initiative and assumes the risk of investments that are at the origin of the database;
3° extraction: a permanent or temporary transfer of all or a substantial part of the content of a database on another medium or in any form; public loan is not an act of extraction;
4° reuse: any form of making available to the public of all or a substantial part of the content of the database by distribution of copies, by rental, online transmission or in other forms; public loan is not an act of reuse. "
Art. 3. In the same Code a book XI is inserted, as follows:
"Book XI. - Intellectual property
Part 1^er. - Patents of invention
Section 1^er. - General
Art. XI.1^er. This title does not affect the provisions of a treaty or convention applicable in Belgium.
This includes full respect for the following international texts: the Convention on Biological Diversity, concluded at Rio on 5 June 1992, the Agreement on Aspects of Intellectual Property Rights, which affect trade entered into at Marrakech on 15 April 1994, the European Convention on Human Rights of 4 November 1950 and the Agreement on a Unified Patent Court of 19 February 2013.
Art. XI. 2. This title, together with title 3, transposes Directive 98/44/EC of the European Parliament and the Council of 6 July 1998 on the legal protection of biotechnological inventions.
Section 2. - Patent of invention
Section 1^re. - General provisions
Art. XI.3. Under the conditions and within the limits set by this title, it is granted under the name "patent of invention", called "patent", an exclusive and temporary right to forbid third parties from the exploitation of any invention, in all technological fields, which is new, implies an inventive activity and is subject to industrial application.
New inventions may be patented, involving inventive and industrial application activity, even when they relate to a product made up of biological matter or container, or to a process to produce, treat or use biological material.
A biological substance isolated from its natural environment or produced using a technical process can be the subject of an invention, even when it pre-existed in a natural state.
Art. XI.4. § 1^er. Not considered inventions within the meaning of Article XI.3, in particular:
1) discoveries and scientific theories and mathematical methods;
(2) aesthetic creations;
3) plans, principles and methods in the exercise of intellectual activities, in the field of play or in the field of economic activities, as well as computer programs;
4) information presentations.
§ 2. The provisions of paragraph 1^er exclude the patentability of the elements listed in the said provisions only to the extent that the patent application or patent applies only to one of these elements, considered as such.
Art. XI.5. § 1^er. Not patentable:
1° plant varieties and animal breeds;
2° essentially biological processes for obtaining plants or animals.
§ 2. Inventions involving plants or animals are patentable if the technical feasibility of the invention is not limited to a plant variety or to a specified animal race.
§ 3. Paragraph 1^er, 2°, does not affect the patentability of inventions with a microbiological process, or other technical processes, or a product obtained by these processes.
§ 4. Not patentable are inventions whose commercial exploitation would be contrary to public order or good morals, including to protect the health and life of persons and animals or to preserve plants, or to avoid serious harm to the environment, the implementation of an invention that cannot be considered as such solely because it is prohibited by a legal or regulatory provision.
§ 5. Paragraph 4 does not include patentable:
1° the cloning processes of human beings, that is, any process, including the scission techniques of embryos, with the aim of creating a human being who would have the same nuclear genetic information as another living or deceased human being;
2° processes for modifying the germ genetic identity of the human being;
3° uses of human embryos for industrial or commercial purposes;
4° the process of modifying the genetic identity of animals of a nature to cause suffering in them without substantial medical utility to man or animal, as well as animals derived from such processes.
§ 6. The human body, at different stages of its constitution and development, as well as the simple discovery of one of its elements, including the sequence or partial sequence of a gene, cannot be patentable inventions.
An isolated element of the human body or otherwise produced by a technical process, including the sequence or partial sequence of a gene, may constitute a patentable invention, even if the structure of this element is identical to that of a natural element.
The industrial application of a sequence or partial sequence of a gene that serves as a basis for an invention must be specifically exposed in the patent application.
§ 7. Invention patents are not issued for surgical or therapeutic treatment methods of the human or animal body and diagnostic methods applied to the human or animal body. This provision is not applicable to products, including substances or compositions, for the implementation of one of these methods.
Art. XI.6. § 1^er. An invention is considered new if it is not understood in the state of the technique.
§ 2. The state of the art is constituted by anything made available to the public before the date of filing the patent application by a written or oral description, use or any other means.
§ 3. The content is also considered to be included in the state of the art:
1° of Belgian patent applications;
2° of European patent applications;
3° or international patent applications for which the European Patent Office is designated and for which the applicant has fulfilled within the prescribed time the conditions provided for in Article 153(3) or (4) of the European Patent Convention as the case may be, and Rule 159(1) of the European Patent Convention Implementing Regulations,
as filed, which has a filing date prior to that referred to in paragraph 2 and has been published only at that date or later date.
§ 4. The provisions of paragraphs 2 and 3 do not exclude the patentability of a substance or composition included in the state of the technique for the implementation of a method referred to in Article XI.5, § 7, provided that its use for any of these methods is not included in the state of the technique.
§ 5. Nor do the provisions of paragraphs 2 and 3 exclude the patentability of a substance or composition referred to in paragraph 4 for any specific use in a method referred to in Article XI.5, § 7, provided that such use is not included in the state of the technique.
§ 6. A disclosure of the invention is not considered for the establishment of the state of the art if it did not intervene earlier than six months before the filing of the patent application and if it results directly or indirectly:
(a) an obvious abuse of the applicant or his predecessor in law, or
(b) the fact that the applicant or his predecessor in law exhibited the invention in official or officially recognized exhibitions within the meaning of the Convention concerning international exhibitions, signed in Paris on 22 November 1928, and provided that the applicant declares, at the time of filing the application, that the invention was actually exhibited and that he produces a certificate in support of his statement within the time and under the conditions established by the King.
Art. XI.7. An invention is considered to involve an inventive activity if, for a skilled person, it does not arise in an obvious way from the state of the art. The documents referred to in Article XI.6, § 3, are not taken into consideration for the assessment of inventive step.
Art. XI.8. An invention is considered susceptible to industrial application if its object can be manufactured or used in any kind of industry, including agriculture.
Section 2. - The right to obtain a patent of invention
Art. XI.9. The right to the patent belongs to the inventor or to his cause.
If more than one person has made the invention independently of each other, the right to the patent belongs to the person who filed the patent application whose filing date is the oldest.
In proceedings before the Agency, the applicant is deemed to be entitled to exercise the right to the patent.
Art. XI.10. § 1^er. If a patent has been requested either for an invention subtracted from the inventor or his or her beneficiaries, or in violation of a legal or treaty obligation, the injured person may, without prejudice to any other rights or actions, claim the transfer of the application or patent granted as a holder.
§ 2. If the injured person is entitled only to a part of the granted application or patent, it may, in accordance with the provisions of paragraph 1^er, claiming the transfer as co-titular.
§ 3. The rights referred to in paragraphs 1^er and 2 shall be exercised no later than two years after the grant of the patent. This provision does not apply if the patent holder knew, at the time of the grant or acquisition of the patent, that he was not entitled to the patent.
§ 4. The introduction of a court application is the subject of a registration. The decision taken as a force of determination regarding the application for justice or any abandonment thereof shall also be entered. Such registrations shall take place at the intervention of the Registrar of the Jurisdiction, upon request of the applicant or of any interested person.
Art. XI.11. § 1^er. Where a full change in ownership of a patent application or patent has occurred as a result of a legal application referred to in Article XI.10, § 4, the licences and other rights are terminated by the registration of the person authorized in the register.
§ 2. If, before the application is filed,
(a) the holder of the patent or patent application has exploited the invention in Belgium or made effective and serious preparations for that purpose, or
(b) the concessionaire of a licence obtained it and operated the invention on Belgian territory or made effective and serious preparations to that end,
they may continue this operation, provided that they apply for a non-exclusive licence to the new owner of the patent application or registered patent. They have the time limit prescribed by the King to do so. The licence must be granted for a period and on reasonable terms.
§ 3. The preceding paragraph is not applicable if the holder of the patent or patent application or the Licensee was in bad faith at the time of commencement of the operation or preparations for that purpose.
Art. XI. 12. The provisions of Articles XI.10 and XI.11 shall apply when the dispute concerning the ownership of a patent application or patent is brought before an arbitral tribunal.
Art. XI.13. The inventor is mentioned in the patent, unless otherwise and expressly requested by him.
The King shall determine the terms and time limits for transmission to the Agency of the request referred to in the preceding paragraph.
Section 3. - The grant of the invention patent
Art. XI.14. Anyone who wants to obtain an invention patent is required to file an application. This request must meet the conditions and forms established by this title and by the King.
Art. XI.15. Without prejudice to the application of the provisions of Chapter 3 of this Title, the filing of the patent application shall be made to the Agency either in person or by postal mail or in any other manner determined by the King.
A receipt, made without charge by the Agency's official delegated to that effect by the Minister, notes each deposit by stating the day on which the documents were received. The receipt shall be notified to the applicant or his representative in accordance with the terms determined by the King.
Art. XI.16. § 1^er. The patent application must contain:
1° a patent application to the Minister;
2° a description of the invention;
3° one or more claims;
4° the drawings to which the description or claims refer;
5° a shortened;
6° a mention of the geographical origin of the biological material of plant or animal origin from which the invention was developed, when it is known. The King may fix the applicable conditions and enforcement measures;
7° the designation of the inventor or the request referred to in Article XI.13, paragraph 1^er.
§ 2. Any patent application shall result in the payment of the filing fee; proof of payment of this tax must be submitted to the Agency no later than one month after the filing of the application.
Art. XI.17. § 1^er. As long as it is satisfied with the provisions of Article XI.15 and subject to the provisions of paragraphs 4 to 9, the date of filing of the patent application is the date on which the Agency has received all the following elements from the applicant:
1° an explicit or implicit indication that the elements are supposed to constitute a patent application;
2° of the indications for establishing the identity of the applicant and allowing the Agency to contact the applicant;
3° a part that at first sight seems to be a description.
§ 2. For the purpose of assigning the filing date, a drawing shall be accepted as an element referred to in paragraph 1^erThree.
§ 3. If the elements referred to in paragraph 1^er, 1° and 2°, are not filed in the language referred to in the Laws on the Use of Languages in Coordinated Administrative Matters on July 18, 1966, paragraph 5 is applicable.
By derogation from the laws on the use of languages in administrative matters coordinated on 18 July 1966, the party referred to in paragraph 1^er, 3°, may be filed in any language, for the purpose of assigning the filing date.
§ 4. Where the application does not meet one or more of the conditions set out in paragraph 1^er, the Agency shall notify the applicant as soon as possible and offer the opportunity to comply with these conditions and to make representations within a time limit set by the King.
§ 5. Where the application as originally filed does not meet one or more of the conditions set out in paragraph 1^erthe date of filing shall, subject to the provisions set out in paragraph 2 and paragraph 7, be the date on which all conditions specified in paragraph 1 have been met^er.
If it is not satisfied with one or more conditions referred to in paragraph 1^er within the time limit set by the King, the application shall be deemed not to have been filed. When the application is deemed not to have been filed, the Agency shall notify the applicant of the reasons.
§ 6. Where, by assigning the filing date, the Agency finds that a portion of the description appears not to be included in the application or that the application refers to a drawing that does not appear to be included in the application, the Agency shall notify the applicant at short notice.
§ 7. Where a missing part of the description or a missing drawing is filed with the Agency within the time limit prescribed by the King, that part of the description or drawing is incorporated in the application and, subject to the provisions of paragraphs 2 and 3, the date of filing is, the date on which the Agency received this part of the description or drawing, the date on which all the conditions set out in paragraphs 1^er and 2 are filled, according to that of these two dates which is later.
Where the missing part of the description or missing drawing is filed with the Agency in accordance with the provisions of paragraph 1^er in a manner that regulates an incomplete application that, on the date at least one of the elements referred to in paragraph 1^er was received by the Agency, claiming the priority of an earlier application, the filing date shall, upon request of the applicant submitted within the time limit set by the King, subject to the conditions prescribed by the King and subject to the fact that the missing elements subsequently added are in the priority document, the date on which it was satisfied with all the conditions set out in paragraphs 1^er and 2.
When the missing part of the description or missing drawing that was filed in accordance with the provisions of paragraph 1^er is then withdrawn within the time limit set by the King, the date of filing is the date on which it has been satisfied with all the conditions set out in paragraphs 1^er and 2.
§ 8. Subject to the conditions laid down by the King, a reference, made at the time of filing of the application, to an application filed previously replaces, for the purpose of assigning the filing date of the application, the description and all drawings.
If the conditions referred to in paragraph 1 are not met^er, the application is deemed not to have been filed. In this case, the Agency shall notify the applicant of the reasons.
§ 9. Where all conditions referred to in paragraph 1^er is completed, the Agency shall notify the applicant of the filing date that is assigned to the application.
§ 10. Nothing in this Article shall limit the right recognized to an applicant under Article 4G, (1) or (2) of the Paris Convention to retain, as the date of a divisional application referred to in that Article, the date of the original application referred to in that Article and, where appropriate, the right of priority.
Art. XI.18. § 1^er. The patent application must contain a description of the invention sufficiently clear and complete so that a skilled person can implement it.
When an invention concerns biological material not accessible to the public and cannot be described in the patent application to allow a person in the trade to carry out the invention or involves the use of such material, the description, for the application of patent law, is deemed sufficient only if the biological material has been filed no later than the day the patent application is filed with a recognized filing institution and if the requirements set by the King are met.
If nucleotide or amino acid sequences are set out in the patent application, the description must contain a list of these sequences. The King may fix the form in which these sequences must be described.
§ 2. The claim(s) define the subject matter of the requested protection. They must be clear and concise and based on the description.
§ 3. Drawings are attached if they are necessary for the intelligence of the invention.
§ 4. A abstract accompanied, if necessary, of a drawing used exclusively for technical information purposes; it cannot be considered for any other purpose. It may be subject to the Agency's control.
Art. XI.19. § 1^er. The patent application may only concern an invention or a plurality of inventions related to each other so that they form only one general inventive concept.
§ 2. Any request that does not meet the requirements of paragraph 1^er shall, within the time prescribed by the King, be limited to a single invention or to a single general inventive concept within the meaning of paragraph 1^er, be divided in such a way that the original patent application and the divisional application(s) each have a single general invention or inventive concept as defined in paragraph 1^er.
§ 3. A limited or divisional application may only be filed for items that do not extend beyond the content of the original application as filed. To the extent that this requirement is met, the limited or divisional application is considered to be filed on the date of filing of the original application and, where applicable, is entitled to the priority of the original application.
§ 4. The applicant may, on its own initiative, limit its application or file a divisional application within the time limit prescribed by the King.
If the patent application has been the subject of a search report mentioning a failure of an invention unit within the meaning of subsection 1^er and in the event that the applicant does not make a limitation of his application or a filing of a divisional application in accordance with the results of the search report, the granted patent will be limited to the claims for which the search report has been prepared.
§ 5. Any patent application that has not been limited or divided in accordance with the provisions of this Article may be rejected.
Art. XI.20. § 1^er. The applicant for a patent, who wishes to avail himself of the priority of an earlier filing under the Paris Convention or the TRIPS Agreement, is required to file a priority statement and a copy of the earlier application under the conditions and deadlines set by the King.
In the priority statement, the patent applicant may also, instead of producing a copy of the previous patent application, refer to a database designated by the King.
Without prejudice to the application of international agreements in this area, the prior filing may include a first regular filing of a patent application in one of the States parties to the Paris Convention or the World Trade Organization, a regional patent application or an international patent application.
The right of priority attached to a first deposit made in a State that is not a party to the Paris Convention may not be claimed, under the conditions and with effects equivalent to those provided for in this Convention, only to the extent that this State grants, under an international agreement, on the basis of a first filing of a Belgian patent application, a European patent application or an international patent application, a priority right that is subject to those conditions
§ 2. The applicant for a Belgian patent will also enjoy a priority equivalent to that mentioned in paragraph 1^er if it produces, under the conditions and deadlines set by the King, a priority statement based on an earlier Belgian patent application and a copy of the previous Belgian application.
During the declaration of priority, a patent applicant may also refer to a database designated by the King.
§ 3. Multiple priorities can be claimed for a patent application even if they come from different states. Where applicable, multiple priorities may be claimed for the same claim. If multiple priorities are claimed, the starting-point deadline is calculated from the date of the oldest priority.
§ 4. When one or more priorities are claimed for a patent application, the right of priority covers only the elements of the patent application that are contained in the application or in applications whose priority is claimed.
§ 5. If certain elements of the invention for which priority is claimed are not included in the claims made in the previous application, it is sufficient, in order for the priority to be granted, that all parts of the previous application disclose in a specific way the said elements.
§ 6. As a result of the right of priority, the priority date is considered to be the filing of the patent application for the application of Article XI.6, §§ 2 and 3.
§ 7. The King may submit the claim of a priority right to a tax to be paid within the time limit and in accordance with the terms fixed by him.
If the King fixes the tax under paragraph 1^ernon-payment of the tax within the time and conditions provided under paragraph 1^er the loss of the right of priority for the patent application under consideration shall be exercised in full law.
The King shall, if any, take into account the following criteria:
1° access to the Belgian patent system; and
2° the relationship between the cost of management for the Tax Office referred to in paragraph 1^erand the revenues generated by this tax.
§ 8. Except in the cases determined by the King, a correction of a priority claim or the addition of such a claim to a request (the "subsequent request") is authorized if:
1° a request for this purpose shall be submitted to the Agency in accordance with the conditions established by the King;
2° the request shall be submitted within the time limit set by the King;
3° the date of filing of the subsequent application is not after the expiry date of the priority period, calculated from the date of filing of the oldest application whose priority is claimed.
The request may not be fully or partially rejected without giving the requesting party the opportunity to submit, within a time limit set by the King, comments on the refusal envisaged.
§ 9. When an application (the "subsequent application") that claimed or could have claimed the priority of an earlier application has a filing date after the expiry date of the priority period, but within the time limit set by the King, the Agency shall restore the priority right if:
1° a request for this purpose shall be submitted to the Agency in accordance with the conditions established by the King;
2° the request shall be submitted within the time limit set by the King;
3° the request sets out the reasons why the priority period has not been met;
4° the Agency finds that, within the priority period, the subsequent application was not filed although the due diligence required in this case was exercised.
The request may not be fully or partially rejected without giving the requesting party the opportunity to submit, within a time limit set by the King, comments on the refusal envisaged.
§ 10. Where a copy of an earlier application as a priority is not submitted to the Agency within the time limit prescribed by the King, the Agency shall restore the priority right if:
1° a request for this effect shall be submitted to the Agency in accordance with the conditions prescribed by the King;
2° the request shall be submitted within the time prescribed by the King for the delivery of the copy of the previous application;
3° the Agency finds that, within the time prescribed by the King, the copy to be provided has been requested from the Office to which the previous application has been filed;
4° a copy of the previous application shall be submitted within the time prescribed by the King.
The request may not be fully or partially rejected without giving the requesting party the opportunity to submit, within a time limit set by the King, comments on the refusal envisaged.
§ 11. The filing of a request under paragraphs 8, 9 and 10 shall result in the payment of the tax fixed by the King.
The request referred to in paragraphs 8, 9 and 10 shall be of full right without effect if the tax referred to in paragraph 1^er has not been paid within the time limit provided by the King.
Art. XI.21. § 1^er. Where the patent application meets the conditions set out in section XI.17 but not the other legal or regulatory conditions, the Agency shall notify the applicant of the application, giving the applicant the opportunity to regularize the application and make representations within the time limit set by the King and subject to the payment of the prescribed fee.
Upon expiry of this period, the unregulated application is deemed to be withdrawn.
Where it is not satisfied within the time limit set by the King on a condition related to a claim of priority, the claim of priority is, subject to the provisions of Article XI.20, §§ 8 to 11, deemed non-existent.
§ 2. Where the patent application meets the conditions set out in Article XI.17 but not the other legal or regulatory conditions, the applicant may, even if it has not been invited by the Agency in accordance with paragraph 1^erto proceed with the regularization of the application as long as the patent has not been granted and with the payment of the prescribed regularization tax.
§ 3. Where the applicant has not paid the filing fee for the application referred to in Article XI.16, § 2, the Agency shall invite the applicant to pay the tax and a surtax within the time limit set by the King. Upon expiry of this period, the application for which the tax referred to in Article XI.16, §2, remained unpaid shall be deemed withdrawn.
§ 4. The effects of the patent application are deemed null and void when the patent application has been withdrawn or when it has been rejected under a decision that is no longer subject to appeal. This provision does not affect the provisions of the Paris Convention relating to the acquisition of the right of priority.
Art. XI.22. The patent applicant may, on his own initiative, in the conditions and times set by the King, rectify the errors of expression or transcription.
The King may fix a fee for rectification referred to in paragraph 1^er.
The King shall, if any, take into account the following criteria:
1° access to the Belgian patent system;
2° the relationship between the cost of management for the Tax Office referred to in paragraph 1^erand revenues generated by this tax; and
3° the accountability of the patent applicant.
Art. XI.23. § 1^er. The patent application may be amended during the proceedings before the Agency or before the courts, in accordance with the law and the enforcement orders.
§ 2. The patent application results in the establishment of a research report on the invention.
It is accompanied by a written opinion on the patentability of the invention in respect of the documents cited as information to the applicant. This opinion is accessible to third parties in the granted patent file.
§ 3. The search report and written opinion are prepared by an intergovernmental body designated by the King.
This report and written opinion are based on the claims, taking into account the description and, where applicable, drawings. They cite the elements of the state of the technique that can be considered to appreciate the novelty of the invention and the inventive step.
§ 4. The applicant is required to pay a search fee, which includes the cost of giving written opinion referred to in paragraph 2, within the time limit and in accordance with the terms and conditions established by the King.
The difference between the amount of royalty to be paid to the intergovernmental body referred to in paragraph 3, paragraph 1^er, for the provision of research reports and the research tax is handled by the State.
The patent application ceases to produce its effects if the search fee is not paid within the period referred to in paragraph 1^er.
§ 5. The Agency shall notify the applicant of the approach to the term of the period in which it must pay the search fee and the consequence that would arise from the absence of payment of that tax. A copy of the warning shall be transmitted by the Agency to the Usufruitar, the Gagist or seizing creditor and the Licensee registered in the register.
A copy of the warning is also transmitted by the Agency to the person whose claim action has been entered in the register.
By derogation from paragraph 4 of this section, the applicant may pay the search fee within the time limit specified in the paragraph. If the proprietor of the patent application also pays the tax, the Agency shall reimburse the claimant for the tax paid by the latter.
In the event of a rejection or abandonment of the claim action, a claimant who has paid the search fee may not claim the refund of that tax or to the Agency or the holder of the patent application when the applicant has refrained from paying the tax.
Warnings and copies are sent by the Agency to the last address that the Agency knows. Failure to send or receive these warnings and copies does not exempt from the payment of the search fee within the prescribed time limit; it may not be invoked in court or in respect of the Agency.
§ 6. The Agency shall communicate the research report and written opinion to the applicant who may file a new wording of the claims and abstraction. The applicant who filed a new claim drafting amends the description to align it with the new claims.
The applicant may also file written comments on the written opinion provided to the applicant.
The patent application may not be amended in such a way that its object extends beyond the content of the application as filed.
The King sets out the conditions and deadlines for amending the claims, description and abstract referred to in this paragraph.
§ 7. The King sets the conditions and deadlines for the preparation of the search report and written opinion, for the submission of comments and for the modification of claims, description and abstraction.
§ 8. If the invention, subject to the patent application, is subject to the provisions of the Act of 10 January 1955, the procedure provided for in this section may only be initiated upon the lifting of the secret to the invention.
§ 9. The King may decide that, if a search report and the written opinion accompanying it, established by the intergovernmental body referred to in paragraph 3 and dealing with an invention identical to that for which a patent application is filed in Belgium, have been requested, before the expiry of the time limit fixed for the acquittal of the search fee referred to in paragraph 4, in the procedure used for the grant of a Belgian or foreign, national or regional patent, or in the procedure
§ 10. Upon request by the applicant addressed to the Agency within the period referred to in paragraph 4, the Agency shall submit the invention, subject to the patent application, to the international search referred to in Article 15, paragraph 5, (a) of the Cooperation Treaty. This research is deemed to constitute research on the invention referred to in paragraph 2 of this section.
The King may fix a fee to be paid within the time limit and in accordance with the terms fixed by the King for the submission of the request referred to in paragraph 1^er.
If the King fixes the tax under paragraph 2, the non-payment of the tax within the time limits and conditions set out in paragraph 2 is, therefore, that the application is of full right deemed not to have been filed.
The King shall, if any, take into account the following criteria:
1° access to the Belgian patent system; and
2° the relationship between the cost of management for the Office of the Tax referred to in paragraph 2, and the revenues generated by that tax.
Art. XI.24. § 1^er. Subject to the provisions of Article XI.47, § 2, the completion of the formalities prescribed for the grant of the patent shall be sanctioned by a ministerial order. This order is the patent.
§ 2. The order shall be issued as soon as possible after the expiry of a period of eighteen months from the date of filing of the patent application or, if the priority right has been claimed in accordance with the provisions of Article XI.20, from the earliest priority date specified in the declaration of priority.
Upon request of the applicant, the order shall be issued before the expiry of the period specified in paragraph 1^er upon completion of the formalities prescribed for the grant of the patent.
§ 3. Without prejudice to paragraph 2 and to the provisions of the Act of 10 January 1955, the Agency shall make the application for a patent accessible to the public on the expiry of the 18-month period referred to in paragraph 2, paragraph 1^er. The King sets out the conditions under which the application is made accessible to the public.
An applicant who does not wish to make his application accessible to the public shall file with the Agency, within the time limit set by the King, an application for withdrawal of his application. The King sets out the modalities for this request.
Upon request to the Agency by the applicant or, where appropriate, by the Usufruitar, the application shall be made publicly available before the time limit referred to in paragraph 2, paragraph 1^er. Mention that the application is made accessible to the public is made in the register.
§ 4. The grant of the patents is made without prior examination of the patentability of the inventions, without guaranteeing the merit of the inventions or the accuracy of the description of the inventions and the risks and risks of the applicants.
The written opinion referred to in Article XI.23, § 2, shall not bind the Agency and shall not apply as a review of the patentability of the invention.
§ 5. Without prejudice to the application of the provisions of the Act of 10 January 1955, mention of the grant of patents is made in the register.
Art. XI.25. § 1^er. On the date of the grant of the patent, subject to the application of the provisions of the Act of 10 January 1955, the patent file is made available to the public at the Agency. From that date, a copy may be obtained under the conditions and forms fixed by the King.
The file of the granted patent includes all information and documents relating to the patent grant procedure, useful for public information and, in particular, the ministerial order for the grant of the patent, the description of the invention, the claims, the possible initial versions of the claims, the drawings to which the description refers, the search report on the invention, the written opinion, as well as, if any, the comments, the new wording
§ 2. The patent application referred to in Article XI.24, § 3, paragraph 2, shall not be made available to the public when the application has been withdrawn or is deemed to have been withdrawn before the end of the seventeenth month from the date of filing of the patent application or, if a priority right is claimed in accordance with the provisions of Article XI.20, from the earliest priority indicated in the declaration of priority, or at a later date to the extent
§ 3. The following items are excluded from the public inspection file:
1° medical certificates; and
2° the indication of the inventor if the inventor filed an application for this effect in accordance with Article XI.13, as well as that request.
§ 4. The King may determine other documents that, by derogation from paragraph 1^er, are excluded from the public inspection file.
§ 5. In the file, items excluded from the public inspection are kept separately.
Art. XI.26. The exclusive right referred to in Article XI.3 shall take effect from the day the patent is made available to the public.
Art. XI.27. § 1^er. The terms and conditions of the record are determined by the Minister. Reference is made to the Register of Registration. The registry is open to public inspection at the Agency.
§ 2. The Agency shall ensure the full publication of the patents granted and amended in accordance with Articles XI.55, XI.56 and XI.57. The bibliographical data of these patents are published in the Collection and made available at the Office's headquarters and on the Agency's website.
The King sets the conditions for subscription to the Collection.
Section 4. - Rights and obligations attached to the invention patent and the invention patent application
Art. XI.28. The extent of protection conferred by the patent is determined by the claims. However, description and drawings are used to interpret claims.
For the determination of the extent of protection conferred by the patent, it shall be duly taken into account any element equivalent to an element specified in the claims.
If the subject-matter of the patent relates to a process, the rights granted by this patent extend to the products obtained directly by this process.
Art. XI.29. § 1^er. The patent confers the right to prohibit any third party in the absence of the consent of the patent holder:
(a) the manufacture, offer, placing in trade, use or import or detention for the above-mentioned purposes of the patent product;
(b) the use of a patented process or, where the third party knows or where circumstances make it clear that the use of the process is prohibited without the consent of the patent holder, the offer of its use in Belgian territory;
(c) the offer, placing in trade or use or import or detention for the above-mentioned purposes of the product obtained directly by the patent process.
§ 2. The patent also confers the right to forbid any third party, in the absence of the consent of the patentee, the delivery or offer of delivery, in Belgian territory, to a person other than those authorized to exploit the patented invention, the means of implementation, in that territory, of that invention relating to an essential element of the invention, where the third party knows or where the circumstances make it clear that such means are suitable and intended for that purpose.
The provisions of the preceding paragraph are not applicable where the means of implementation are products that are commonly found in the trade, unless the third party incites the person to whom it delivers acts prohibited by paragraph 1^er.
Not considered to be persons authorized to exploit the invention within the meaning of paragraph 1^er of this paragraph those who perform the acts referred to in Article XI.34, § 1^er(a) to (c).
Art. XI.30. § 1^er. The protection conferred by a patent in respect of a biological substance that has, as a result of the invention, certain properties extends to any biological material obtained from that biological substance by reproduction or multiplication in the same or differentiated form and with the same properties.
§ 2. The protection conferred by a patent in respect of a process to produce a biological substance that has, as a result of the invention, determined properties extends to the biological material directly obtained by this process and to any other biological material obtained, from the biological material directly obtained, by reproduction or multiplication in the identical or differentiated form and with the same properties.
Art. XI.31. The protection granted by a patent to a product containing genetic information or consisting of genetic information extends to any material, subject to Article XI.5, § 6, paragraph 1^erin which the product is incorporated and in which genetic information is contained and exercises its function.
Art. XI.32. The protection referred to in Articles XI.30 and XI.31 does not extend to the biological material obtained by reproduction or multiplication of a biological material placed on the market in the territory of a Member State of the European Union by the owner of the patent or with his consent, where reproduction or multiplication necessarily results from the use for which the biological material has been put on the market, provided that the material obtained is not then used for other reproductions or multiplications.
Art. XI.33. § 1^er. By derogation from Articles XI.30 and XI.31, the sale or other form of marketing of plant reproduction material by the owner of the patent or with his or her consent to a farmer for agricultural purposes implies for the owner the authorization to use the product of his or her crop for reproduction or multiplication by himself on his or her own exploitation, the extent and modalities of that exemption corresponding to those provided for in Article 14 of Regulation (EC) No.
§ 2. By derogation from Articles XI.30 and XI.31, the sale or other form of commercialization of livestock or other animal breeding material by the owner of the patent or with his consent to a farmer implies the authorization to use the livestock protected for agricultural use. This includes the provision of the animal or other animal breeding material for the continuation of its agricultural activity, but not the sale in the context or purpose of a commercial breeding activity. The extent and modalities of this exemption are consistent with those set out in the regulations for obtaining animal breeds.
Art. XI.34. § 1^er. The patent rights do not extend:
(a) acts performed in a private and non-commercial context;
(b) acts performed for scientific purposes on and/or with the purpose of the patented invention;
(c) the preparation of medications made extemporarily and per unit in pharmacy informals, on a medical order, or in the acts of medicines so prepared;
(d) the use, on board the ships of the countries of the Union of Paris for the protection of industrial property other than Belgium, of the object of the patented invention, in the body of the ship, in the machines, sandstones, flats and other accessories, when these vessels enter temporarily or accidentally into the waters of Belgium, provided that the said object is used exclusively for the needs of the ship;
(e) the use of the subject-matter of the patented invention in the construction or operation of the air or land locomotion equipment of the countries of the Union of Paris for the protection of industrial property other than Belgium, or of the accessories thereof, when they enter temporarily or accidentally into Belgian territory;
(f) the acts provided for in Article 27 of the Convention of 7 December 1944 relating to international civil aviation, where such acts relate to aircraft of a State other than Belgium, enjoying the provisions of this Article.
§ 2. The rights conferred by the patent do not extend to acts relating to the product covered by this patent, carried out in Belgian territory, after this product was put into trade in Belgium by the patent holder or with his express consent.
Art. XI.35. § 1^er. A reasonable compensation, as determined under the circumstances, may be required by the patent applicant of any third party who made the invention, between the date on which the patent application was made available to the public under Article XI.24, § 3, or to be copied to the third party concerned, and the date on which the patent was granted, an operation that, after that period, would be prohibited under the patent. The extent of the protection so conferred on the patent application is determined by the claims that have been the subject of the publication referred to in Article XI.24, § 3, or, if any, by the most recent claims filed with the Agency contained in the copy handed over to the third party.
§ 2. Copy to the interested third party referred to in paragraph 1^er must be certified by the Agency.
§ 3. If there is no agreement between the parties, the compensation is fixed by the court. It may also impose the measures it considers necessary to safeguard the interests of the patent applicant and the third party.
§ 4. After the grant of the patent, the third party may request the restitution of the compensation paid to the extent that the final drafting of the claims has restricted the scope of the claims that have served as the basis for fixing the compensation.
§ 5. Compensation action and restitution action are prescribed by five years, respectively, from the termination of the operation of the invention and the date of grant of the patent.
§ 6. The usufruct of the patent application may avail itself of the provisions of this Article.
Art. XI.36. § 1^er. Any person who before the date of filing or priority of a patent, used or possessed in good faith in Belgian territory the invention, subject to the patent, has the right, as a personal measure, to exploit the invention despite the existence of the patent.
§ 2. The rights conferred by the patent do not extend to the acts relating to the product covered by this patent made in Belgian territory after the product was put into trade in Belgium by the person who enjoys the right referred to in paragraph 1^er.
§ 3. The rights recognized in this article may only be transmitted to the company to which they are attached.
Art. XI.37. § 1^er. The Minister may grant, pursuant to sections XI.40 to XI.42, a licence to operate an invention covered by a patent:
1° where a period of four years from the date of filing of the patent application, or three years from the date of grant of the patent, the period that expires later to be applied, has elapsed without the patented invention being exploited by import or serious and continuing manufacture in Belgium and without the patent holder justifying his inaction by legitimate excuses.
In the case of a patent with a machine object, the serious and continuous manufacturing in Belgium by the proprietor of the product patent obtained using this machine can be considered to exploit the patented invention in Belgium when this manufacture appears to be more important to the country's economy than that of the machine itself.
A mandatory licence for default or lack of operation will only be granted provided that the licence is awarded primarily for the procurement of the national market.
2° where an invention, covered by a patent belonging to the applicant of the licence, cannot be exploited without prejudice to the rights attached to a patent arising from an earlier filing and provided that the dependent patent allows for significant technical progress, of considerable economic interest, in relation to the invention claimed in the dominant patent and provided that the licence is granted primarily for the procurement of the national market;
3° where an obstructor may not obtain or exploit a right to obtain a plant without prejudice to an earlier patent, to the extent that the licence is necessary for the operation of the plant variety to be protected and provided that the variety represents a significant technical advance of considerable economic interest in relation to the invention claimed in the patent and provided that the licence is granted primarily for the procurement of the national market;
4° to the holder of a right to obtain a plant, where the holder of a patent in respect of a biotechnological invention has, in accordance with the provisions of the Plant Breeding Protection Act, obtained a mandatory licence for the non-exclusive exploitation of the plant variety protected by the right to obtain a plant because it cannot exploit the biotechnological invention without impairing the right to obtain a previous plant and
In the case of semiconductor technology as defined in Council Directive 87/54 of 16 December 1986, the licences referred to in 1° and 2° of this paragraph may only be granted if they are intended to remedy a practice determined by a judicial or administrative procedure that it is anti-competitive.
§ 2. The applicant for the licence must establish:
(1) in the cases referred to in the preceding paragraph:
(a) that the patent holder falls under the application of any of these provisions;
(b) that he has in vain addressed to the patentee to obtain an amicable licence;
(2) further, if the licence is claimed by application of the 1st of the preceding paragraph, that it would have, in the case that the licence would be granted to it, the means necessary to ensure a serious and continuous manufacturing in Belgium based on the patented invention.
§ 3. Any infringement of an invention covered by a patent whose compulsory licence is sought and brought against the applicant for such a licence shall suspend the licensing procedure until such time as the judgment or order acquires force of thing tried. If the infringement is established, the mandatory licence application is rejected.
§ 4. It is reserved the application of the laws providing for the licensing of patented inventions in special materials, including national defence and nuclear energy.
Art. XI.38. § 1^er. In the interest of public health, the King may, by order deliberately in the Council of Ministers, grant a license to operate and apply an invention covered by a patent to:
(a) a drug, a medical device, a medical device or a diagnostic product, a derivative therapeutic product or a combination thereof;
(b) the method or product required for the production of one or more products referred to in (a);
(c) a diagnostic method applied outside the human or animal body.
§ 2. The applicant for the mandatory licence must establish that, in the event that the mandatory licence is granted to the applicant, he or she has the means or intention to obtain the means that are necessary for the production and/or serious and ongoing application in Belgium of the patented invention.
§ 3. Any proceedings concerning a counterfeit action of an invention covered by a patent for which a compulsory licence for public health reasons has been sought and brought against the applicant for such a licence, shall be suspended with respect to the question of counterfeiting until a decision concerning the compulsory licence is made by the King in accordance with paragraph 1^er.
§ 4. The licences granted under this section are not exclusive.
§ 5. The mandatory licence may be limited in time or in terms of its scope.
§ 6. The applicant for a mandatory licence submits his application to the Minister and sends a copy of it to the Bioethics Advisory Committee.
The Minister shall forward the application within 10 days to the Bioethics Advisory Committee. During the same period, the Minister shall inform the holder of the patent, which is the subject of a mandatory licence application, of the content of the application and invite him to make known his views on the possible granting of a mandatory licence and his observations on reasonable remuneration in the event that a mandatory licence is granted, within one month, to the Bioethics Advisory Committee with a copy to himself.
The Bioethics Advisory Committee shall provide the Minister with a reasoned and non-binding opinion on the merits of the application.
Within three months of receiving the advice of the Bioethics Advisory Committee, the Minister shall, for deliberation to the Council of Ministers, submit a draft Royal Order based on the merits of the application. The Minister also submits a compensation proposal for the patent holder.
If the King decides, in accordance with paragraph 1^er, to grant the mandatory licence, It shall determine, if any, by order deliberately in the Council of Ministers, the duration, scope and other conditions of operation of that licence. The operating conditions also set the remuneration for the operation of the patented invention during the licensing procedure.
In the event of a public health crisis and on the proposal of the Minister with public health in his office, the King may, by order deliberately in the Council of Ministers, take measures to expedite the procedure referred to in this paragraph. It may, if applicable, provide that the advice of the Bioethics Advisory Committee shall not be obtained in order to expedite the licensing procedure.
Decisions taken in the proceedings referred to in the preceding paragraphs shall be issued to the Belgian Monitor and referred to in the Reports.
The mandatory licence is effective from the day of operation and as soon as the application for the mandatory licence is dated.
§ 7. A reasonable remuneration must be paid by the applicant of the licence for the use of the patented invention during the period between the mandatory licence application for public health reasons and the royal decree granting the compulsory licence. In this case, the King sets the amount of compensation by order deliberately in the Council of Ministers.
§ 8. Upon the issuance of the mandatory licence, the relationship between the patent proprietor and the Licensee shall be assimilated, unless derogated under paragraph 6, to those between a grantor and a contractual Licensee.
§ 9. The issuance of the mandatory licence, as well as the related decisions, are registered in the registry.
§ 10. As long as new elements have been made, the King may, by order of the Council of Ministers, make a decision at the request of the holder of the patent or the Licensee and in accordance with the procedures set out in paragraph 6, review what has been decided with respect to their reciprocal obligations and, where appropriate, the operating conditions.
§ 11. At the request of any interested person and after having once again taken note of the opinion of the Bioethics Advisory Committee, the King may, by order deliberately in the Council of Ministers, withdraw the compulsory licence granted for public health reasons if, after the expiry of the time limit for exploitation, the Licensee did not exploit in Belgium the invention patented by a serious and continuous manufacture.
The withdrawal order is published by extract to the Belgian Monitor and mentioned in the Collection.
§ 12. Sections XI.37, XI.40 to XI.46 do not apply to the mandatory licence referred to in this section. The provisions of this Article shall not apply to the mandatory licences referred to in Articles XI.37, XI.40 to XI.46.
Art. XI.39. § 1^er. Without prejudice to paragraph 2, the King is the competent authority within the meaning of section 2.4. of the Regulation (EC) No. 816/2006 of the European Parliament and the Council of 17 May 2006 concerning the granting of compulsory licences for patents for the manufacture of pharmaceutical products for export to countries with public health problems.
Decisions relating to the granting, revision, rejection and withdrawal of a mandatory licence are taken by order deliberately in the Council of Ministers.
§ 2. The King may designate the competent Belgian authorities to implement articles 6.1, 7, 14, 16.1, paragraph 2, 16.3 and 16.4 of the Regulation (EC) No. 816/2006.
§ 3. The King is empowered to establish purely formal or administrative requirements for the effective processing of mandatory licence applications under the Regulations (EC) No. 816/2006.
§ 4. Sections XI.37, XI.38 and XI.40 to XI.46 do not apply to the mandatory licence referred to in this section. The provisions of this Article shall not apply to the mandatory licences referred to in Articles XI.37, XI.38 and XI.40 to XI.46.
Art. XI.40. § 1^er. Mandatory licences issued pursuant to Article XI.37 are not exclusive.
§ 2. Without prejudice to the second paragraph of Article XI.37, § 1^er, 1°, the licence granted by application of the said 1° of paragraph 1^er, confers on the Licensee only the right to exploit the patented invention by serious and continuous manufacturing in Belgium. The Minister sets the time limit for such manufacture to be carried out, which involves the full application of the process, which may be claimed in the patent.
Compulsory license may be limited in time or only part of the invention when it allows the realization of other fabricates than those required to meet the needs of Article XI.37, § 1^er.
As soon as the compulsory licence is granted, the relationship between the patent holder and the Licensee shall be assimilated, except as derogations provided for in the award order, to those between a grantor and a contractual Licensee.
§ 3. The licence granted under Article XI.37, § 1^er, 2°, is limited to the part of the invention covered by the dominant patent whose use is indispensable for the exploitation of the dependent patented invention and allows this use only in connection with the said exploitation.
The third paragraph of paragraph 2 is applicable to the mandatory licence.
The proprietor of the patent to which the compulsory licence is imposed may, if both inventions relate to the same type of industry, be granted a patent licence to which the applicant of the compulsory licence has applied.
§ 4. The licence granted under Article XI.37, § 1^er, 3° or 4°, is limited to the part of the invention covered by the dominant patent whose use is indispensable for the exploitation of the dependent patented invention or the variety protected by the right to obtain dependent plant and only allows this use in conjunction with the said exploitation.
The third paragraph of paragraph 2 is applicable to the mandatory licence granted under Article XI.37, § 1^er3° or 4°.
Art. XI.41. § 1^er. In the cases referred to in Article XI.37, § 1^er, the Minister grants mandatory licences upon request.
§ 2. The request shall be forwarded by the Minister to the Compulsory Licences Commission so that the Commission hears the persons concerned, conciliates them if possible and, if not, gives the Minister a reasoned opinion on the merits of the application. The Board, in its opinion, attached the case file.
The Minister shall then decide to make a reservation to the request and notify the person concerned by registered mail.
§ 3. In the cases referred to in Article XI.37, § 1^er, 2° and 3°, the application for a compulsory licence is declared to be founded if the proprietor of the dominant patent does not contest the dependence of the patent or the right to obtain the plant of the applicant of the licence, its validity, or the fact that the invention or variety allows for significant technical progress, of considerable economic interest, in relation to the invention claimed in the patent.
§ 4. The fact for the holder of the previous patent to deny the dependency of the patent or the right to obtain the plant of the applicant of the licence shall, in full right, take the author's right to exploit the invention described in his own patent or in his right to obtain the plant and the so-called dominant invention without the power of that leader to be prosecuted in counterfeit by the holder of the previous patent.
The contestation of the validity of the patent or the right to obtain a plant shall suspend the administrative procedure relating to the recognition of the merits of the application for a licence, provided that an action in nullity of the said patent or the right to obtain a plant is already filed before the competent authority by the proprietor of the dominant patent, or that the applicant cites the applicant of the licence before the court within two months of the notification that has been made to it of the filing of the patent.
The challenge of significant technical progress, a considerable economic interest in the patent or the right to obtain a plant dependent on the invention described in the dominant patent suspends the administrative procedure relating to the recognition of the validity of the application for a licence, provided that the proprietor of the dominant patent introduces, within two months of the notification made to him from the filing of the application for a licence, an application to the court sitting as a reference. The judicial decision is not subject to appeal or opposition.
The non-observance of the period provided for in the preceding two subparagraphs results in the forfeiture of the right of the dominant patent proprietor to make his appeal before the court.
Art. XI.42. § 1^er. Within four months of the notification of the decision, the patentee and the licence applicant entered into a written agreement regarding their rights and reciprocal obligations. The minister is informed. In the absence of a convention within the period referred to above, the rights and mutual obligations will be fixed by the court sitting as a reference, on the summons of the most diligent party.
A copy of the final judgment is immediately forwarded to the Minister by the Clerk.
The fixing of the obligations of the parties will in any case include adequate compensation in the light of the economic value of the licence.
§ 2. The Minister grants the licence by a reasoned order.
The mandatory licence and related decisions are entered in the registry.
The Order is published in the Belgian Monitor and mentioned in the Collection.
Art. XI.43. § 1^er. It is established with the SPF Economie a Commission of Mandatory Licences which is responsible for carrying out the tasks assigned to it by articles XI.41, XI.44 and XI.45.
The Commission is composed of ten members appointed by the Minister.
Eight members are nominated on a proposal from industry, agriculture, trade, small and medium-sized industrial enterprises and consumers.
The organizations referred to in the previous paragraph are designated by the Minister.
Two members are appointed from the members of the Intellectual Property Council. They remain members of the Commission for the duration of their term of office within the Commission, regardless of their membership of the Commission.
The term of membership of the Commission is six years. He's renewable.
The Commission is chaired by one of its members, designated by the Minister for a term of three years renewable.
Opinions are adopted by consensus. In the absence of consensus, the opinion takes the different opinions.
The King determines how the Commission operates and organizes.
The Commission develops its rules of procedure. This comes into force after approval by the Minister.
§ 2. When the Minister receives a request for the granting of a mandatory licence, the Minister shall designate one or more qualified officers from the Commission, selected from the SPF Economy officials.
The Commission defines the mission of the agents referred to in paragraph 1^er and sets out the modalities under which these officers report on their mission. The Commission shall specify the conditions for the transmission of the documents referred to in paragraph 4 to ensure the protection of confidential information.
Agents commissioned by the Minister are competent to collect any information, receive any written or oral testimony or testimony they consider necessary to carry out their mission.
In performing their duties, these officers may:
1° with a prior warning of not less than five working days or without a prior warning if they have reason to believe that there is a risk of the destruction of parts useful to the instruction of the mandatory licence application, enter, during the usual hours of opening or working, in offices, premises, workshops, buildings, adjacent courses and enclosures, whose access is necessary to the completion of their mission;
2to make all useful findings, to be produced, on first requisition and without displacement, the documents, documents or books required for their research and findings and to take a copy thereof;
3° to collect samples, according to the modes and conditions determined by the King;
4° seize, against receipt, the documents referred to in item 2 that are necessary for the fulfilment of their mission;
5° to commit experts whose mission they determine, according to the conditions determined by the King.
In the absence of confirmation by the Chairman of the Committee within fifteen days, the seizure shall be lifted in full right. The person in whose hands the objects are seized may be incorporated as a judicial guardian.
The Chairperson of the Commission may release the seizure that he has confirmed, if any, upon the request of the owner of the seized objects addressed to the Commission.
By means of a prior warning of at least five working days or without a prior warning if they have reason to believe that there is a risk of destruction of documents useful to the instruction of the mandatory licence application, commissioned agents can visit the inhabited premises with the prior authorization of the President of the Commercial Court. Visits to manned premises must be conducted between eight and eighteen hours and be made jointly by at least two officers.
In carrying out their mission, they may require the assistance of the police services.
The commissioned officers exercise their powers under this section under the supervision of the Attorney General, without prejudice to their subordination to their superiors in the administration.
§ 3. The officers commissioned for this purpose submit their reports to the Commission. The Commission shall only issue its notice after hearing the patent holder and the person who requires or has obtained the mandatory licence. Such persons may be assisted or represented either by a lawyer or by a person whom the Commission specifically associates in each case. The Commission also hears the experts and the persons it considers useful to question. It may require commissioned officers to complete additional information and provide a supplementary report.
At least one month before the date of its meeting, the Commission shall notify the persons to be heard at the meeting by registered mail. In the event of an emergency, the deadline is reduced by half.
§ 4. The operating costs of the Commission are borne by the SPF Economy budget.
Art. XI.44. As long as new elements have been made, the request of the patent holder or the Licensee may be made to review the decisions taken with respect to their mutual obligations and, where appropriate, the operating conditions. The review authority is the authority of which the decision emanates and the procedure to be followed is the same as the authority to conduct the review decision.
Art. XI.45. § 1^er. At the request of the proprietor of the patent, the Minister withdraws the mandatory licence if it results from a judgment cast in force of a finding that the Licensee was guilty of the patent holder of an unlawful act or that he failed to comply with his obligations.
§ 2. At the request of any interested person, the Minister may withdraw the required licence granted for failure to operate if, at the expiry of the time limit set by the Minister for operation, the Licensee did not in Belgium have an operation of the invention patented by a serious and continuous manufacture.
§ 3. Withdrawal decisions are submitted by the Minister for advice to the Compulsory Licences Commission.
The withdrawal is the subject of a reasoned decision. The latter mentions the reason why the Board's opinion was not followed.
The withdrawal order is published by extract to the Belgian Monitor and mentioned in the Collection.
Art. XI.46. The licensee of a mandatory licence may transfer by transfer or sub-license to third parties the rights attached to the licence only with the part of the business or trade fund assigned to the operation of the licence and subject to the licence granted under Article XI.37, § 1^er, 2°, are limited only with the dependent patent.
Article XI.51 is applicable by analogy.
Art. XI.47. § 1^er. The patent expires at the end of the twentieth year from the date of filing of the application, subject to the payment of the annual taxes referred to in Article XI.48.
§ 2. In the case provided for in Article XI.23, § 8, the patent application ceases to produce its effects, subject to the payment of annual fees, on the expiry of the period prescribed for the payment of the search fee, if the fee has not been paid.
Art. XI.48. § 1^er. In order to maintain its current status, any patent application or patent shall result in the payment of annual fees. The King can fix the year from which annual taxes are due for the first time. Annual fees are due as early as the beginning of the third year and no later than the beginning of the fifth year, from the date of filing of the patent application and at the beginning of each of the following years.
For the year from which annual taxes are due for the first time, the King takes at least the following criteria into account:
1° access to the Belgian patent system; and
2° the relationship between the cost of management for the Tax Office referred to in paragraph 1^erand the revenues generated by this tax.
The payment of the annual fee expires on the last day of the month of the anniversary of the filing of the patent application. The annual fee may not be validly paid more than six months prior to maturity.
When the payment of the annual tax has not been made on its maturity date, the tax may still be paid, increased by a surtax, within a grace period of six months from the expiry of the annual tax.
The amount of the annual tax and surtax shall be determined by the King, by order deliberately in the Council of Ministers.
§ 2. In the absence of payment of the annual tax and surtax within the grace period of six months provided for in the preceding paragraph, the holder of the patent or patent application shall be deprived of his or her rights. The due date is effective on the date of the annual unpaid tax. The loss is registered.
§ 3. For persons referred to in Article XI.78, § 3, the amount of annual tax and surtax is reduced by 50%. The King shall determine the application for a reduction in the amount of the annual tax and surtax referred to in this paragraph.
Section 5. Patent of invention and patent application for invention as property objects
Art. XI.49. § 1^er. In the absence of a convention, the co-ownership of a patent application or patent shall be governed by the provisions of this article.
§ 2. Each co-owner has the right to personally exploit the invention.
A co-owner may not encroach on a right the patent application or patent, concede an operating licence or bring a counterfeit action only with the agreement of the other co-owner or, if not agreed, with the authorization of the court.
Undivided assessments are presumed to be equal.
If a co-owner wishes to transfer his/her share, the other co-owner has a pre-emption right for three months from the notification of the assignment project.
The most diligent party may ask the court president to appoint an expert according to the rules of the referee in order to determine the conditions of the assignment. The expert's conclusions bind the parties, unless, in the month of their notification, one of the parties discloses that it is waiving the assignment, the related costs being borne by the expert.
§ 3. The provisions of sections I and IV of Chapter VI of Title 1 of Book III of the Civil Code are not applicable to the co-ownership of a patent application or patent.
§ 4. The co-owner of a patent application or patent may notify the other co-owners of their decision to give up their share. As from the registration of this abandonment to the registry, this condominium is discharged from all obligations with respect to other co-owners; the share is divided by the percentage of their rights in the condominium, unless otherwise agreed.
Art. XI.50. § 1^er. Any assignment or transfer, total or partial, of a patent application or patent must be notified to the Agency.
§ 2. The transfer of a patent application or a patent must be made in writing only if it is invalid.
§ 3. The notification referred to in paragraph 1^er must be accompanied either by a copy of the transfer certificate or the official document that acknowledges the transfer of rights, or by an excerpt from that act or document sufficient to determine the transfer, or by a certificate of assignment signed by the parties.
The King sets out the content and modalities of this notification. It may fix a tax that must be paid prior to the registration of the copy, extract or attestation to the registry.
The King shall, if any, take into account the following criteria:
1° access to the Belgian patent system;
2° the relationship between the cost of management for the Agency of the tax referred to in paragraph 2, and the revenues generated by that tax; and
3° the dissemination of information to third parties regarding the status of the patent or patent application.
§ 4. Notifications are registered in the chronological order of their receipt.
§ 5. Subject to the case provided for in Article XI.10, the transfer shall not affect the rights acquired by third parties before the date of the transfer.
§ 6. The assignment or transfer has no effect on the Agency and is only applicable to third parties after the registration of its notification to the registry and within the limits that arise from the act or document referred to in paragraph 3. However, prior to the registration of the notification, the assignment or transfer is subject to third parties who have acquired rights after the date of the assignment or transfer, but who were aware of it at the time of the acquisition of these rights.
Art. XI.51. § 1^er. A patent application or patent may, in whole or in part, be subject to contractual licences for all or part of the kingdom. Licences may be exclusive or non-exclusive. They must be made in writing barely invalid.
§ 2. The rights conferred by the patent application or the patent may be invoked against a Licensee who violates one of the limits of its licence imposed under subsection 1^er.
§ 3. Article XI.50, § 5, is applicable to the concession of a licence of a patent application or patent.
§ 4. The grant of a licence for a patent application or patent and any amendment to the certificate referred to in the following paragraph must be notified to the Agency.
This notification is made by the introduction of a certificate signed by the parties. The King determines the contents and terms of this certificate. It may fix a tax that must be paid prior to the registration of the certificate in the register.
The King shall, if any, take into account the following criteria:
1° access to the Belgian patent system;
2° the relationship between the cost of management for the Agency of the tax referred to in paragraph 2, and the revenues generated by that tax; and
3° the dissemination of information to third parties regarding the status of the patent or patent application.
§ 5. The grant of a licence of a patent application or patent and any amendment to the certificate provided for in the preceding paragraph shall not affect the Agency and shall not be subject to third parties except after the registration of the certificate or the amendment certificate and within the limits resulting from such certificates. Article XI.50, § 6, second sentence, is applicable.
§ 6. The transmission of a licence of a patent application or patent must be made in writing only in a case of invalidity. It must be notified to the Agency.
Article XI.50, §§ 3 to 6, is applicable by analogy to the transmission of the licence.
Art. XI.52. § 1^er. The usufruct on a patent application or on a patent as well as the application for a patent or patent must be notified to the Agency.
§ 2. Article XI.50, §§ 3 to 6, is applicable by analogy to the actual rights referred to in the preceding paragraph.
Art. XI.53. The seizure of a patent application or patent shall be carried out in accordance with the procedure provided for in the matter of seizure.
A copy of the seizure operation must be notified to the Agency by the seizing creditor; the entry is registered.
The seizure makes it unopposable to the seizing creditor the subsequent changes made by the holder to the rights attached to the patent application or patent.
Art. XI.54. The rights acquired by third parties on a patent application retain their effect with respect to the patent granted on this application.
Section 6. Nullity, renunciation and revocation of the invention patent
Art. XI.55. § 1^er. The holder of a patent may at any time waive it, in whole or in part, by a written and signed statement addressed to the Minister. The declaration of renunciation is registered in the register.
The patent may not be amended by a waiver in such a way that its object extends beyond the content of the application as filed.
The patent may not be amended by waiver so as to extend the protection it confers under the latest version of the patent.
§ 2. The total waiver results in the loss of the patent on the date of the registration of the return to the registry. However, if, on that date, the annual fee has not yet been paid, the patent's termination is effective at the end of the period covered by the last annual fee paid.
§ 3. The waiver may be limited to one or more patent claims or to a portion of a claim or claims. The partial waiver shall result in the loss, on the date of the registration of the declaration to the registry, of the rights attached to the claim or to the claims, or to the parties to which it is waived.
§ 4. The patent waiver declaration must be accompanied by:
(1) the claim(s) or part thereof to which the patentee declares to give up;
2° where applicable, the full text of the amended claim(s) that the patent holder wishes to maintain and, where appropriate, the description and drawings as amended.
The declaration of renunciation may only apply to one patent.
§ 5. In case of co-ownership, the waiver, total or partial, must be made by all co-owners.
§ 6. If the rights of usufruct, gage or licence are entered in the registry, the patent may be waived, in whole or in part, only with the consent of the holders of these rights.
§ 7. It may not be waived, in whole or in part, to a patent that is the subject of a claim of ownership, a patent entered or a patent that has been the subject of a mandatory licensing decision.
§ 8. The provisions of this article shall apply by analogy to the patent application.
§ 9. Any waiver made in violation of paragraphs 6 and 7 shall be null and void.
§ 10. The King shall determine the terms and conditions of the waiver procedure with the Agency and shall determine the amount and method of payment of the royalty that may be collected by the Agency.
Art. XI.56. § 1^er. The holder of a patent may at any time revoke the patent, in whole or in part, by a written and signed statement to the Minister, without prejudice to the civil liability of the registrant. The revocation declaration is registered in the registry.
If the revocation is made in a court proceeding relating to the patent, the licensee shall file, in advance, to the Agency the declaration referred to in paragraph 1^er. The amended patent serves as the basis for judicial proceedings.
The patent may not be amended by way of a revocation in such a way that its object extends beyond the content of the application as filed.
The patent may not be amended by way of a revocation so as to extend the protection it confers under the latest version of the patent.
§ 2. The partial revocation is made by a modification of the claims and, where applicable, of the description or drawings. Revocation may be limited to one or more patent claims or to a portion of a claim or claims. The partial revocation shall result in the termination, on the date of filing of the patent application, of the rights attached to the claim or to the claims, or to the parties thereof, which are the subject of the revocation.
§ 3. The partial revocation of the patent shall be accompanied by:
(1) the claim(s) or part thereof that the patent holder declares to revoke;
2° where applicable, the full text of the amended claim(s) that the patent holder wishes to maintain and, where appropriate, the description and drawings as amended.
The revocation of the patent is enforceable to third parties from the date of its registration to the registry, without prejudice to the responsibility of the registrant.
The declaration of revocation may only apply to one patent.
§ 4. In the event of co-ownership, revocation, total or partial, shall be carried out by all co-owners.
§ 5. If any rights of usufruct, gage or licence have been entered in the registry, the patent may only be revoked, in whole or in part, with the agreement of the rights holders.
§ 6. A patent that is the subject of a claim of ownership, seizure or decision of compulsory licensing cannot be revoked in whole or in part.
§ 7. The provisions of this article shall apply by analogy to the patent application.
§ 8. Any revocation made in violation of paragraphs 5 and 6 shall be null and void.
§ 9. The King shall determine the terms and conditions of the revocation procedure to the Agency and shall determine the amount and method of payment of the royalty that may be collected by the Agency.
Art. XI.57. § 1^er. The patent is declared null by the court:
1° if its object falls under the application of Articles XI.4 or XI.5 or does not meet the requirements of Articles XI.3, XI.6, XI.7 and XI.8;
2° if he does not expose the invention sufficiently clear and complete so that a man of the trade can execute it;
3° if its object extends beyond the content of the patent application as filed or, where the patent has been granted on the basis of a divisional application, if its object extends beyond the content of the original application as filed;
4° if the patent holder did not have the right to obtain it under Article XI.9.
§ 2. If the grounds for invalidity affect the patent only in part, the patent is limited by a corresponding modification of the claims and, where applicable, of the description and drawings, and is declared partially null. This amendment is entered in the registry.
§ 3. The patent may not be amended by way of a cancellation in such a way that its object extends beyond the content of the application as filed.
The patent may not be amended by way of a cancellation so as to extend the protection it confers under the latest version of the patent.
Art. XI.58 § 1^er. The total or partial cancellation of a patent and the total or partial revocation of a patent pursuant to Article XI.56 have a retroactive effect on the date of filing of the patent application.
§ 2. Subject to the provisions relating to remedies for damage caused by the negligence or bad faith of the proprietor of the patent or to the enrichment without cause, the retroactive effect of the invalidity and revocation of the patent shall not affect:
1° the counterfeit decisions having acquired force of thing tried and executed prior to the nullity decision or registration in the register of the voluntary revocation of the patent;
2° the contracts entered into prior to the decision to cancel the patent or to register the revocation register, to the extent that they were executed prior to that decision; However, the restitution of amounts paid under the contract, to the extent that the circumstances warrant it, may be claimed for fairness reasons.
Art. XI.59. § 1^er. When a patent is cancelled, in whole or in part, by a judgment or judgment or by an arbitral award, the decision to cancel has, in respect of all, the authority of the thing judged subject to the third opposition.
The cancellation decisions passed in force of deemed thing are entered in the register.
§ 2. In case of patent cancellation, the cassation appeal is suspensive.
Section 7. Protection of rights conferred by the invention patent
Art. XI.60. § 1^er. Constitutes a counterfeit involving the responsibility of its author, any infringement of the rights of the holder referred to in Article XI.29.
If the subject-matter of the patent is a process to obtain a new product, any identical product manufactured by a person other than the patent holder is, until proven otherwise, considered to be obtained by this process. In the production of the contrary evidence are taken into consideration the legitimate interests of the defendant for the protection of its manufacturing or business secrets.
§ 2. The holder or usufructier of a patent shall be entitled to act in counterfeit.
However, the recipient of a mandatory licence granted under Article XI.37, § 1^er, 1°, may act in counterfeit if, after reinstatement, the proprietor or usufructor of the patent do not engage such action.
Unless otherwise provided by the licence contract, the previous paragraph is also applicable to the beneficiary of an exclusive licence.
Any Licensee is entitled to intervene in the proceedings in counterfeiting initiated by the proprietor or the proprietor of the patent in order to obtain compensation for the damage that is specific to him.
§ 3. The infringement action can only be brought from the date on which the patent is made available to the public and only for acts of infringement committed from that date.
Art. XI.61. Counterfeit action is prescribed by five years from the day the counterfeit was committed.
Section 3. - Representation before the Agency
Art. XI.62. § 1^er. Subject to paragraph 2 and paragraph 3, paragraph 1^erin respect of invention patents, no one is required to be represented before the Agency.
§ 2. Individuals and legal entities who wish to act before the Board in respect of invention patents through a third party must have recourse to an authorized agent.
§ 3. Physical and legal persons who have no domicile or establishment in a Member State of the European Union must, in order to act before the Office in the matter of invention patents, be represented by an authorized representative and act through it.
Physical and legal persons referred to in paragraph 1^er, may act themselves before the Agency for the following procedures:
1° the filing of an application for the purpose of granting a filing date;
2° the payment of a tax;
3° the filing of a copy of an earlier application;
4° the issue of a receipt or notification of the Agency in a procedure under 1°, 2° and 3°.
§ 4. Every person may pay annual taxes.
§ 5. A lawyer registered in the Order's table or on the list of interns, a lawyer and a patent attorney with the nationality of a Member State of the European Union and authorized to practise this profession in a Member State of the European Union, as well as any lawyer authorized to practise this profession in Belgium under a law or international convention, may act as an authorized agent with the Office.
The King shall take the measures that, in the matter of free service of an agent before the Agency, are necessary for the fulfilment of the obligations arising from the Treaty on the European Union or the provisions enacted under this Treaty.
§ 6. Individuals and legal persons who have their domicile or an effective institution in a Member State of the European Union may act before the Agency in respect of invention patents through one of their employees; that employee, who must have a power, is not required to be an authorized agent. The King may provide for whether and under what conditions an employee of a legal person referred to in this paragraph may also act for other legal persons who have an effective establishment in a Member State of the European Union and have economic ties with it.
§ 7. Special provisions concerning the representation of common parties may be established by the King.
§ 8. For the purposes of this chapter, the language of the procedure and the language of correspondence with the Agency is the language to be used by the patent applicant or the patentee in accordance with the laws on the use of languages in administrative matters coordinated on 18 July 1966.
Art. XI.63. Without prejudice to the provisions of the Act of 8 July 1977 approving certain international patents and without prejudice to Article XI.91, the provisions of this chapter shall also apply in respect of the filings of patent applications made in accordance with these international acts and in respect of all other acts relating to such applications or to patents granted on such applications.
Art. XI.64. § 1^er. When one or more of the conditions set out in sections XI.62 and XI.63 are not met, the Agency shall notify the person who has completed the act and shall offer the opportunity to fulfil that or those conditions and to present his or her observations within the time limit set by the King.
§ 2. Where one or more of the conditions provided for in Articles XI.62 and XI.63 are not fulfilled within the time prescribed by the King in accordance with paragraph 1^er, the act accomplished is null and void.
§ 3. Unduly paid taxes are refunded.
Art. XI.65. A register shall be established at the Agency where the authorized agents are registered to ensure, in the matters referred to in section XI.63, the representation of natural or legal persons before the Agency.
The King shall determine the references to be included in the Register of Chartered Agents and the manner in which it is held.
Art. XI.66. § 1^er. Only natural persons may be registered in the Register of Chartered Agents. They must meet the following conditions:
1st be a national of a Member State of the European Union and be domiciled in such a State;
2° shall not be subject to judicial protection under section 492/1 of the Civil Code;
3° shall not be in a state of prohibition within the meaning of articles 31 to 34 of the Criminal Code; have not been sentenced in Belgium or abroad for any of the offences specified in Royal Decree No. 22 of 24 October 1934 prohibiting certain convicted persons and bankrupt persons from performing certain functions, occupations or activities and conferring on the commercial courts the power to impose such prohibitions;
4° to be holders of a Belgian university degree or a Belgian diploma in long-term higher education, issued after four years of study at least in a scientific, technical or legal discipline.
Diplomas issued abroad after at least four years of study, in the same disciplines are allowed provided that their equivalence has been previously recognized by the competent Belgian authorities;
5° having carried out an activity in the field of invention patents for a duration and according to the terms fixed by the King;
6° having successfully completed a trial before the commission referred to in Article XI.67 no later than two years after the termination of the activity referred to in the 5th of this paragraph, on the subject matter of industrial property and mainly on the subject matter of invention patents.
§ 2. The person who is exempted under either an international convention or an exemption granted by the King for reciprocity must not fulfil the conditions of domicile and nationality.
§ 3. The King shall take the measures that, in the area of access to the profession of professional representative and the exercise of this professional activity, are necessary for the fulfilment of the obligations arising from the Treaty on the Functioning of the European Union or the provisions enacted under this Treaty which are related to the requirements of diploma, certificate or other titles.
Art. XI.67. A Commission for the Accreditation of Agents admitted to representing physical and legal persons in the matters referred to in Article XI.62 shall be established with the SPF Economie.
The tasks of the Commission are:
1° to examine whether persons wishing to be registered in the Register of Chartered Agents meet the conditions set out in Article XI.66, § 1^er1° to 5°;
2° to undergo the test referred to in Article XI.66, § 1^er6°;
3° to give the Minister a notice on the decisions he is required to make in respect of the registration and delisting of the Register of Chartered Agents.
Art. XI.68. The Commission has two sections. One statue in French, the other in Dutch.
The King shall determine the composition and operation of the Commission and shall determine the terms of the test referred to in Article XI.66, § 1^er6°. A member of the French section must have sufficient knowledge of German.
The necessary funds are included in the SPF Economy budget.
Art. XI.69. The application for registration in the Register of Chartered Agents is addressed to the Minister. The Committee shall transmit it for advice to the Commission. The notice is given to the Minister at the same time as the record.
If the applicant meets the required requirements, the Minister shall register the authorized agents within one month of receipt of the notice. If the applicant does not meet these conditions, the Minister shall reject the application within the same time limit. In both cases, the Minister shall promptly inform the person concerned.
The decision by which the Minister derogates from the Board's view and the decision by which the Minister rejects the application must be motivated.
Art. XI.70. The person who has been registered in the Register of Chartered Agents pursuant to section 64 of the Invention Patent Act, 1984 retains the benefit of registration.
Those listed in the first paragraph may be deleted in accordance with Articles XI.71 and XI.72.
Art. XI.71. Any person registered in the Register of Chartered Agents may request that the Minister be removed from the Register.
Art. XI.72. The name of the person shall be removed from the register of authorized agents:
1° that died or is in the case of incapacity referred to in Article XI.75;
2° which, having been registered in the register of authorized agents pursuant to Article XI.69, no longer meets the conditions set out in Article XI.66, § 1^er, 1° and 2°, or may no longer invoke the provisions of the international convention or the reciprocity referred to in paragraph 2 of that article;
3° that, having been registered in the Register of Agents under Article XI.70, is no longer domiciled in Belgium or in a Member State of the European Union or is subject to a judicial protection measure referred to in Article 492/1 of the Civil Code;
4° which, having been registered in the register of authorized agents pursuant to Article XI.70, has been removed from office of the list of authorized agents near the European Patent Office for one of the reasons listed in Rule 154, § 2, letters (a) to (c), of the rules of execution of the European Patent Convention or for having been the subject of a disciplinary measure taken under Article 134(b)
5° which, at the time of its application for registration or an application for modification of its registration, voluntarily submitted documents or made statements whose content did not correspond to the reality;
6° that has been sentenced or has been subject to a prohibition measure referred to in Article XI.66, § 1^er, 3° ;
7° who was guilty of a serious misconduct in the exercise of his representation activities in respect of invention patents before the Agency.
The duration of the radiation taken under items 5° to 7° of this article shall not be less than one year.
Art. XI.73. A registered agent whose registration has been terminated shall, on his request, be subject to a new registration in the Register of Chartered Agents where the reasons that led to his removal no longer exist, where the disciplinary measure referred to in Article XI.72, 4°, no longer arises or when the period of the delisting measure taken under Article XI.72, 5° to 7°, has come to an end.
Art. XI.74. In the cases referred to in section XI.72, that of death except, or where a new registration is requested on the basis of section XI.73, the Minister requests the prior notice of the Accreditation Commission.
The Commission shall notify the person concerned, at least twenty days in advance, by registered mail, of the session during which the case will be examined. The individual may be assisted or represented by a lawyer or an authorized agent.
The notice, along with the record, is forwarded to the Minister.
Decisions on delisting and denial of new registration and those by which the Minister derogates from the Commission's opinion must be motivated.
The Minister shall promptly inform the person concerned of his decision to delist, resubmit or refuse such registration. It shall cause the delisting or registration, as the case may be, in the month following receipt of the notice.
Art. XI.75. In the event of the death of an authorized agent or the impossibility of performing his or her representation activity, the assignments entrusted to him or her with the Agency may be carried out for six months by another authorized agent without the latter having to justify a warrant.
Art. XI.76. The Register of Chartered Agents is filed with the Agency where any interested person may consult. The register is also available on the website designated by the King.
Section 4. - Miscellaneous provisions
Art. XI.77. § 1^er. Where an applicant or a patentee has not observed a time limit for the performance of an act in a proceeding before the Agency, and that this non-compliance has as a direct result the loss of patent or patent rights, the Agency shall restore the rights of the applicant or the holder in respect of the patent or patent application if:
1° a request for this effect shall be submitted to the Agency in accordance with the conditions and within the time limit set by the King;
2° the uncompleted act must be done within the time limit for the submission of the request under 1°;
3° the request sets out the grounds for which the time limit has not been observed;
4° the Agency finds that the failure to observe the time limit has occurred although the due diligence required in this case has been exercised.
The request for restoration is entered in the register.
A statement or other evidence in support of the reasons referred to in 3° shall be provided to the Agency within a time limit set by the King.
The request for restoration is processed only after the restoration tax prescribed for this request has been paid.
§ 2. An application under paragraph 1^er may not be wholly or partially rejected without giving the requesting party the opportunity to submit, within the time limit set by the King, its observations on the refusal envisaged.
When the request for restoration is granted, the legal consequences of the failure to observe the time limit are deemed not to have occurred.
The decision to restore or refuse is entered in the register.
If the request for restoration is granted, without prejudice to paragraph 1^er, 2°, in the event of a waiver as a result of the failure to comply with the period provided for in section XI.48, any annual fee that would have expired during the period beginning on the date on which the loss of rights occurred, and up to the date on which the restoration decision is entered in the Register, must be paid within four months from that date.
§ 3. Whoever, between the time of the loss of rights provided for in Article XI.48, § 2, and the time when the restoration of these rights comes out of its effect in accordance with paragraph 2 of this article, has in good faith used in Belgium the invention subject of the patent or taken to that end the necessary measures may continue to use this invention for the purposes of its own business. The right recognized by this paragraph may only be transmitted to the company to which it is attached. Is reserved the application of the law of 10 January 1955.
The preceding paragraph is also applicable where the protection provided for in Article XI.35, § 1^er, takes effect as a result of the restoration of the patent application.
§ 4. The request for restoration in the rights referred to in paragraph 1^er is not admissible for:
1° the time limits referred to in paragraph 1^er and paragraph 2, paragraph 4;
2° the time limits referred to in Article XI.20, §§ 8 to 10.
The King shall determine, if any, other time limits than those mentioned in the preceding paragraph, for which the request for restoration is not admissible.
Art. XI.78. § 1^er. The King shall determine the amount, time and method of payment of the additional taxes and royalties provided for in or under this title.
§ 2. When the Agency provides special patent benefits, the King may provide for a fee that sets the amount, time and method of payment. The additional fee cannot in any case exceed 125 euros.
§ 3. The King may reduce the taxes, additional taxes and royalties it designates in favour of natural persons, a national of a Member State, either of the European Economic Area or of the World Trade Organization, if their income does not exceed the quotity of the tax-exempt income set out in sections 131 et seq. of the Income Tax Code 1992. Where applicable, income expressed in foreign currencies is converted to euros in the currency concerned.
§ 4. The King fixes cases in which unduly paid additional taxes, taxes and royalties are refundable in whole or in part.
Art. XI.79. Payment of taxes and royalties provided for in this title, or whose collection is authorized by it, is validly made if it is made at the rate in effect on the day of payment.
Taxes and royalties collected are not refunded unless otherwise provided by this title or its enforcement orders.
Art. XI.80. Unless otherwise provided, where, under Article XI.50, § 3, paragraph 1^er, or section XI.53, paragraph 2, a copy of an original document or an excerpt from it is requested, the Agency may, in the event of a legitimate doubt about the authenticity of the hand-delivered copy or sent of the original document or the extract from it, direct inquiry to the person who issued the original document.
If this inquiry results in a disproportionate burden on the Agency or on the person who issued the original document or if direct contact with the person who issued the document is difficult, the Agency may invite the person concerned, by registered mail with acknowledgement of receipt, to produce the original document. In this recommended consignment, the reason for the submission of the original document is set out. As long as the original document is not produced, the procedure in which this document is delivered is suspended.
Art. XI.81. The King determines the terms and conditions under which citizens and businesses can communicate electronically with the Agency and transmit documents and acts in electronic form.
Section 5. - European Patents
Art. XI.82. § 1^er. The patent application made in accordance with the provisions of the European Patent Convention may be filed, at the choice of the applicant, either with the Office or with the European Patent Office.
§ 2. The patent application, made in accordance with the provisions of the European Patent Convention, by persons with Belgian nationality or their domicile or siege in Belgium and who may interest the defence of the territory or the security of the State shall be filed with the Office. The provisions of the Act of 10 January 1955 relating to the disclosure and implementation of inventions and secrets of factory relevant to the defence of the territory or the security of the State shall apply to it.
§ 3. The European patent application does not provide protection under Article 64 of the European Patent Convention. However, a reasonable allowance, as determined under the circumstances, may be required of any person who has operated the invention in Belgium, subject to the application, from the date on which the claims were made publicly available to the Agency or were handed over to that person in one of the national languages.
Art. XI.83. § 1^er. If the European patent without a unitary effect granted by the European Patent Office, or the European patent without a unitary effect maintained as amended or limited by the European Patent Office, following a European patent application in which Belgium has been designated, is not written in any of the national languages, the holder of this patent must provide the Agency with a translation of this European patent without a granted, amended or limited period of time, in any of these languages
§ 2. Where the patent holder has not observed the period referred to in paragraph 1^er and that this non-compliance has as a direct result the loss of patent rights under subsection 3, the Agency shall restore the rights of the patent holder if:
1° a request for this effect shall be submitted to the Agency in accordance with the conditions and within the time limit set by the King;
2° the uncompleted act must be done within the time limit for the submission of the request under 1°;
3° the request sets out the grounds for which the period referred to in paragraph 1^er was not observed;
4° the Agency finds that the failure to observe the time limit has occurred although the due diligence required in this case has been exercised.
The request for restoration is registered in the Register.
A statement or other evidence in support of the reasons referred to in 3° is provided to the Agency within a time limit set by the King.
The request for restoration is processed only after the restoration tax prescribed for this request has been paid.
The request for restoration cannot be fully or partially rejected without giving the requesting party the opportunity to present its observations on the refusal envisaged within the time limit set by the King.
When the request is granted, the legal consequences of non-observing the time limit are deemed not to have occurred.
The decision to restore or refuse is entered in the Register.
If the request for restoration is granted, any annual tax that would have expired during the period beginning on the date on which the loss of rights occurred, and up to the date on which the restoration decision is registered, must be paid within four months from that date.
§ 2/1. Any person who, between the time of the loss of rights provided for in paragraph 3 and the time when the restoration of these rights comes out of effect in accordance with paragraph 2, has in good faith used in Belgium the invention subject to the patent or taken to that end the necessary measures may continue to use this invention for the purposes of his or her own business. The right recognized by this paragraph may only be transmitted to the company to which it is attached. Is reserved the application of the law of 10 January 1955.
§ 2/2. The request for restoration in the rights referred to in paragraph 2 is not admissible for the time limits referred to in the same paragraph.
The King shall determine, if any, other time limits than those mentioned in the preceding paragraph, for which the request for restoration is not admissible.
§ 2/3. The procedure for the restoration of rights referred to in paragraph 2 is retroactively applicable to European patents granted prior to the entry into force of this article, which meet the following cumulative conditions:
1° European patent is not written in a national language;
2° the European patent is maintained as amended or limited;
3° the European patent is deemed to have no effect in Belgium because of the provision of a translation of the patent to the Agency after the expiry of the three-month period referred to in paragraph 1^er and before this section comes into force; and
4° the restoration procedure referred to in paragraph 2 shall not apply to the patent on the date of entry into force of this Article, taking into account the time limits provided under paragraph 2, 1°;
5° the request for restoration shall be filed with the Agency within six months of the entry into force of this section.
§ 3. If the provision of paragraph 1^er is not observed, the European patent without a unitary effect is, from the beginning, deemed without effect in Belgium.
§ 4. The Agency maintains a register of all European patents without a unitary effect referred to in paragraph 1^er which have effect on the national territory, makes the text or possibly translation available to the public and receives national taxes for the maintenance in force of the patent for the years following that in which the mention of the grant of the patent was published.
§ 5. The provisions of the Agreement on a Unified Patent Court shall apply to European patents without a unitary effect that have taken effect on the Belgian territory as national patents, subject to the application of Article 83 (1) to (3) and (5) of this Agreement.
§ 6. When the unitary effect of a European patent has been registered under Regulation 1257/2012, this European patent is deemed not to have taken effect as a national patent on the date of publication of the mention of its grant in the European Patent Bulletin.
Art. XI.84. The provisions of Articles XI.82 and XI.83 do not affect the right of national courts to require a full translation of the application or patent granted in the language of judicial proceedings.
Art. XI.85. The Agency makes available the language engineering services allowing the automatic translation of patent information, through a website designated by the King, on which European patent applications and granted European patents can be consulted in the same conditions in all national languages.
The King may specify the terms and conditions for the provision of the relevant language engineering services.
Art. XI.86. § 1^er. To the extent that a Belgian patent has an invention for which a European patent has been granted to the same inventor or to his cause with the same date of filing or, if a priority has been claimed, with the same date of priority, the Belgian patent, provided that it covers the same invention as the European patent, ceases to produce its effects either on the date on which the period for the formation of the opposition to the European patent has been expired without
The termination or subsequent cancellation of the European patent does not affect the provisions of this Article.
§ 2. The Brussels Commercial Court finds that the Belgian patent has ceased to produce its effects in whole or in part under the conditions specified in paragraph 1^er.
§ 3. When the judgment or judgment is cast as a force of judgment, the finding is entered in the patent registry and made known to the public.
Art. XI.87. The holder of a European patent application may apply in the cases referred to in Article 135, § 1^er, letter a, from the European Patent Convention, to initiate the procedure for granting a Belgian invention patent. This application will be rejected if it does not meet, within three months after the Agency receives the request for processing, the following conditions:
(a) pay the national filing fee;
b) produce the application in one of the national languages if the European patent application is not in one of these languages.
The search report, if prepared by the European Patent Office, may be used in the grant procedure.
Art. XI.88. The King shall designate the national authorities to which the European Office may apply for administrative and judicial cooperation under Article 131 of the European Patent Convention.
Art. XI.89. The request for a technical notice referred to in Article 25 of the European Patent Convention may be addressed directly to the European Patent Office.
Art. XI.90. The King may set a royalty for the publication of the revised translations and translations referred to in Article XI.83 of this title.
If a royalty has been established under paragraph 1^er, the latter shall be paid within the period referred to in Article XI.83, § 1, of this title.
The King shall, if any, consider the determination of the amount of the royalty, take into account at least the following criteria:
1° access to the Belgian patent system; and
2° the relationship between the cost of management for the Agency of the royalty referred to in paragraph 1^erand the revenues generated by this tax.
Section 6. - International applications
Art. XI.91. § 1^er. Without prejudice to the application of the provisions of Article 151 of the European Patent Convention, the Agency acts as a receiver within the meaning of Article 2 XV of the Patent Cooperation Treaty. The administration responsible for international research and, where appropriate, the administration responsible for international preliminary examination shall be designated by the King.
§ 2. The international application, referred to in Article 2 VII of the Patent Cooperation Treaty, which may interest the defence of the territory or the security of the State must be filed with the Agency. The provisions of the Act of 10 January 1955 relating to the disclosure and implementation of inventions and secrets of factory relevant to the defence of the territory or the security of the State shall apply to it.
§ 3. Any designation or, where appropriate, any election of Belgium in an international application is considered to be the indication that the applicant wishes to obtain a European patent in accordance with the European Patent Convention.
Part 2. - Additional protection certificates
Section 1^er. - Certificate issuance and extension
Art. XI.92. § 1^er. The application for a supplementary protection certificate, referred to as "certificate" and the application for an extension of the certificate shall be filed with the Agency.
§ 2. The application for the issuance of a certificate and the request for an extension of the certificate shall be signed by the applicant and introduced by means of a form made available to the interested parties by the Agency and the model of which is fixed by the Minister.
§ 3. Any request for a certificate and any request for an extension of the certificate shall result in the payment of a deposit fee. The proof of payment of this tax must be submitted to the Agency no later than one month after the application is filed.
Art. XI.93. § 1^er. Subject to paragraphs 2 and 3, the date of filing a certificate application is the date on which the Agency has received all of the following documents from the applicant:
1° a declaration that a certificate is requested;
2° of the indications to identify the applicant and allowing the Agency to contact the applicant;
3° of the indications to determine the basic patent.
§ 2. Where the application does not meet one or more of the conditions set out in paragraph 1^er, the Agency shall notify the applicant and offer the opportunity to comply with these conditions and to make representations within three months.
Where no notification has been made because the information allowing the Agency to contact the applicant has not been provided, the time limit referred to in paragraph 1^er, is three months from the date on which the Agency initially received at least one of the elements referred to in subsection 1^er.
§ 3. Where the application as originally filed does not meet one or more of the conditions set out in paragraph 1^erthe date of filing shall, subject to the provisions set out in paragraph 2, be the date on which all conditions set out in paragraph 1 have been met^er.
If it is not satisfied with one or more conditions referred to in paragraph 1^er within the time limit set by the Agency, the application is deemed not to have been filed. When the application is deemed not to have been filed, the Agency shall notify the applicant of the reasons.
§ 4. Where all conditions referred to in paragraph 1^er is completed, the Agency shall notify the applicant of the filing date that is assigned to the application.
Art. XI.94. § 1^er. Subject to paragraphs 2 and 3, the date of filing an application for an extension of the certificate is the date on which the Agency has received all of the following documents from the applicant:
1° a declaration that an extension of the certificate is requested;
2° of the indications to identify the applicant and allowing the Agency to contact the applicant;
3° of indications to determine the certificate.
§ 2. Where the application does not meet one or more of the conditions set out in paragraph 1^er, the Agency shall notify the applicant and offer the opportunity to comply with these conditions and to make representations within three months.
Where no notification has been made because the information allowing the Agency to contact the applicant has not been provided, the time limit referred to in paragraph 1^er, is three months from the date on which the Agency initially received at least one of the elements referred to in subsection 1^er.
§ 3. Where the application as originally filed does not meet one or more of the conditions set out in paragraph 1^erthe date of filing shall, subject to the provisions set out in paragraph 2, be the date on which all conditions set out in paragraph 1 have been met^er.
If it is not satisfied with one or more conditions referred to in paragraph 1^er within the time limit set by the Agency, the application is deemed not to have been filed. When the application is deemed not to have been filed, the Agency shall notify the applicant of the reasons.
§ 4. Where all conditions referred to in paragraph 1^er is completed, the Agency shall notify the applicant of the filing date that is assigned to the application.
Art. XI.95. Mention of the certificate application and reference to the certificate extension request are published in the register.
Art. XI.96. § 1^er. If the application for a certificate does not meet the conditions for the drugs, as set out in Article 8 of Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary certificate of protection for the drugs, hereafter referred to as "Regulation 469/2009" and, for the phytopharmaceutical products, by Article 8 of the Regulation (EC) no 1610/96 of the European Parliament and of the Council of 23 July
§ 2. If it is not remedied within the prescribed time limit for irregularities or default of payment of the filing fee, notified under subsection 1^er, the application is rejected by the Agency.
§ 3. Paragraphs 1 and 2 apply, mutatis mutandis, at the request for an extension of the certificate.
Art. XI.97. The issuance of certificates shall be carried out without examination of the conditions set forth in article 3, c and d, of regulation 469/2009 and, for phytopharmaceutical products, in article 3, § 1^er, c and d of Regulation 1610/1996.
Art. XI.98. Mention of the issuance of the certificate or rejection of the certificate application and mention of acceptance of the extension of the certificate or rejection of the application for an extension of the certificate shall be published in the register.
Art. XI.99. Mention of the termination or invalidity of the certificate and mention of the revocation of the extension of the certificate shall be published in the register with the following information:
1° the name and address of the certificate holder;
2° the basic patent number;
3° the title of the invention.
Section 2. - Taxes and royalties
Art. XI.100. The King shall determine the amount and terms and conditions for payment of additional taxes and fees due to certificates and extension of the certificate.
Art. XI.101. § 1^er. With a view to its continued existence, any application for a certificate or certificate shall result in the payment of annual fees. The first annuity is due to the expiry of the legal duration of the basic patent.
Payment of the annual fee expires on the last day of the month of the anniversary of the filing of the application of the basic patent. The annual fee may not be validly paid more than six months prior to maturity.
§ 2. When the payment of the annual tax has not been made on its maturity date, the tax may still be paid, increased by a surtax, within a grace period of six months from the expiry of the annual tax.
§ 3. The amount of the annual tax and surtax shall be determined by the King, by order deliberately in the Council of Ministers.
§ 4. Failing to pay the annual fee within the grace period of six months provided for in paragraph 2, the holder of the certificate or certificate application shall be deprived of his or her rights. The due date is effective on the date of the annual unpaid tax. The loss is registered.
Section 3. - Restoration
Art. XI.102. § 1^er. Where an applicant for a certificate or extension of the certificate or a certificate holder has not observed a time limit for the performance of an act in a proceeding before the Agency, and that such non-compliance has as a direct result the loss of the certificate or the application for a certificate or extension of the certificate, the Agency shall restore the applicant's or the holder's rights with respect to the certificate or application for a certificate or extension of the certificate if:
1° a request for this effect shall be submitted to the Agency in accordance with the conditions and within the time limit set by the King;
2° the uncompleted act is completed within the time limit of the application referred to in 1°;
3° the request sets out the grounds for which the time limit has not been observed;
4° the Agency finds that the failure to observe the time limit has occurred although the due diligence required in this case has been exercised.
The request for restoration is entered in the register.
A statement or other evidence in support of the reasons referred to in 3° shall be provided to the Agency within a time limit set by the King.
The request for restoration is processed only after the restoration tax prescribed for this request has been paid.
§ 2. An application under paragraph 1^er may not be wholly or partially rejected without giving the requesting party the opportunity to submit, within the time limit set by the King, its observations on the refusal envisaged.
The decision to restore or refuse is entered in the register.
§ 3. Whoever, between the time of the loss of rights provided for in Article XI.101, § 4, and the time when the restoration of these rights comes out of its effect in accordance with paragraph 2 of this article, has in good faith used in Belgium the product, subject to the protection conferred by the certificate, or taken to that end the necessary measures may continue to use the product for the purposes of its own business. The right recognized by this paragraph may only be transmitted to the company to which it is attached.
Art. XI.103. The request for restoration in the rights referred to in Article XI.102, paragraph 1^er, is not admissible for:
1° the time limits referred to in Article XI.102, paragraph 1^er;
2° the time limits referred to in Article 7.5. of Regulation 469/2009.
The King shall determine, if any, other time limits than those mentioned in the preceding paragraph, for which the request for restoration is not admissible.
Part 3. - Right to obstruct
Section 1^er. - Material law
Section 1^re. - Conditions for the granting of the right to obtain
Art. XI.104. Varieties of all types and botanical species, including their hybrids, may be subject to a breeder's right.
Art. XI.105. The breeder's right is granted when the variety is distinct, homogeneous, stable and new.
In addition, the variety must be designated by a name in accordance with the provisions of section XI.143.
Art. XI.106. § 1^er. A variety is considered to be distinct if it is clearly distinguished, by reference to the expression of the characters that result from a genotype or combination of given genotypes, of any other variety whose existence is notoriously known at the date of filing of the application determined in accordance with section XI.133 or, where applicable, at the priority date determined in accordance with section XI.134.
§ 2. The existence of another variety shall be considered notoriously known if, on the date of filing of the application determined in accordance with section XI.133 or, where applicable, on the priority date determined in accordance with section XI.134:
1° this other variety is protected from plant varieties or is registered in an official register of varieties, in any State or in any intergovernmental organization competent in this field;
2° an application for the protection of plant varieties for that other variety or for registration in such an official register is filed, provided that in the meantime the application has given rise to the granting of protection or registration in the register;
3° the cultivation or marketing of this other variety is already underway;
4° this other variety is present in a reference collection or is described precisely in a publication.
Art. XI.107. A variety is considered homogeneous if it is sufficiently homogeneous in the expression of the characters included in the examination of the distinction and any other character used for the description of the variety, subject to the foreseeable variation given the particularities of its multiplication.
Art. XI.108. A variety is considered to be stable if the expression of the characters included in the examination of the distinction and any other character used for the description of the variety remains unchanged as a result of successive multiplications or, in the case of a particular multiplication cycle, at the end of each cycle.
Art. XI.109. § 1^er. A variety is considered to be new if, on the date of filing of the application determined in accordance with section XI.133 or, where applicable, on the priority date determined in accordance with section XI.134, a variety of components or a variety of crop material have not been sold or otherwise disposed of to third parties, by the breeder or with its consent, for the purposes of the operation of the variety:
1° in the territory of Belgium, more than one year before the date mentioned above;
2° outside the territory of Belgium, more than four years or, in the case of trees or vines, more than six years before the date mentioned above.
§ 2. The assignment of various constituents to an official body for legal purposes or to third parties on the basis of a contract or any other legal relationship for exclusive purposes of production, reproduction, multiplication, packaging or storage is not considered to be an assignment to third parties within the meaning of paragraph 1^er, provided that the obstructor retains the exclusive right of assignment of these various constituents or others and that no other assignment is made.
However, this assignment of various constituents is considered an assignment within the meaning of paragraph 1^er if these constituents are used repeatedly for the production of a hybrid variety and if there is a transfer of various components or a crop material of the hybrid variety.
Similarly, the assignment of various constituents by a company or company within the meaning of Article 54, §2, of the Treaty on the Functioning of the European Union to another of these companies or companies is not considered to be an assignment to third parties if one of them is wholly owned by the other or both is wholly owned by a third company or undertaking of that type, provided that no other assignment is made. This provision does not apply to cooperative corporations.
§ 3. The assignment of various components or crop materials of the variety that have been produced from cultivated plants for the purposes specified in Article XI.116, 2° and 3°, and that are not used for a new multiplication is not considered to be an exploitation of the variety, unless reference is made to this variety for the purpose of this sale.
Similarly, it is not taken into account the assignment to third parties if it is due to the fact or is the consequence of the fact that the breeder presented the variety in an official or officially recognized exhibition within the meaning of the Convention on International Exhibitions or in an exhibition organized in a Member State of the European Union and officially recognized as equivalent by that Member State.
Art. XI.110. The applicant shall designate the variety by name in accordance with Article XI.143.
Section 2. - Right or cause
Art. XI.111. § 1^er. The person who has created or has discovered and developed the variety or its right or cause, below referred to as the "obtentor", is entitled to the right of breeder.
§ 2. If the new variety has been created or discovered and developed by two or more persons, the law belongs jointly to these persons or their rightful persons or their respective beneficiaries, unless otherwise agreed.
§ 3. If the new variety was created or discovered and developed by an employee as part of his employment contract, the right will return to the employer unless otherwise stipulated.
Art. XI.112. § 1^er. Any natural or legal person or body, assimilated to a legal person under the legislation under which the person reports, may apply for the right to obtain.
§ 2. An application may be filed jointly by two or more persons.
Section 3. - Effects of the right to obstruct
Art. XI.113. § 1^er. The right to obstruct is to reserve the right to perform the acts referred to in paragraph 2.
§ 2. Without prejudice to sections XI.115 and XI.116, the licensee's authorization is required for the following acts in respect of the various constituents, crop equipment or products manufactured directly from a protected variety harvesting equipment:
1° production or multiplication;
2° packaging for the purposes of multiplication;
3° offer for sale;
4° the sale or any other form of marketing;
5° import;
6° export;
7° detention for one of the purposes mentioned above.
The licensee may subject to conditions and limitations.
§ 3. Subsection 2 applies to harvesting equipment only if it has been obtained by the unauthorized use of a variety of components of the protected variety and unless the licensee has been reasonably able to exercise its right in relation to the various constituents.
§ 4. Subsection 2 applies to products manufactured directly from a protected variety harvesting material only if these products were manufactured by the unauthorized use of the said crop material and unless the licensee was reasonably able to exercise its right in relation to the said harvesting equipment.
Art. XI.114. § 1^er. The provisions of section X.113 also apply:
1° to varieties essentially derived from the protected variety, when it is not itself a essentially derivative variety,
2° to varieties that do not differ significantly from the protected variety in accordance with Article XI.106,
and
3° to varieties whose production requires repeated use of the protected variety.
§ 2. For the purposes of paragraph 1^er, 1°, a variety is considered essentially derived from another variety, referred to as "initial variety", if
1° it is mainly derived from the original variety, or from a variety which is itself mainly derived from the original variety,
2° it differs significantly from the original variety in accordance with Article XI.106,
and
3° except in respect of differences resulting from derivation, it conforms to the original variety in the expression of essential characters that result from the genotype or combination of genotypes of the original variety.
§ 3. Essentially derived varieties can be obtained, for example, by selecting a natural or induced mutant or a somaclonal variant, by selecting an individual that varies among the plants of the original variety, by retrocroming or by processing by genetic engineering.
Art. XI.115. § 1^er. Notwithstanding Article XI.113, § 2, farmers are allowed to use, for purposes of multiplication in their own farm, the proceeds of the crop obtained by the cultivation, in their own farm, of a protected variety or of a variety referred to in Article XI.114.
§ 2. The conditions for giving effect to the exemption provided for in paragraph 1^er and to safeguard the legitimate interests of the breeder and farmer are fixed by the King.
Art. XI.116. The right of obstructor does not extend:
1° to acts performed in private and non-commercial terms;
2° to experimental acts;
3° to acts performed to create or develop other varieties;
4° to the acts referred to in Article XI.113, §§ 2, 3 and 4, relating to these other varieties, unless Article XI.114 is applicable;
5° to acts whose prohibition would be contrary to the provisions of Article XI.115 or Article XI.126.
Art. XI.117. § 1^er. The right of obstructor does not extend to acts relating to the material of the protected variety, or to a variety referred to in Article XI.114, which has been commercialized in the territory of the European Union, by the holder or with his or her consent, or concerning material derived from the said material, unless such acts:
1° implies a further multiplication of the variety in question, unless this multiplication is expected during the disposal of the equipment,
or
2° involves an export of variety material to reproduce the variety to a country that does not protect the varieties of the plant genus or plant species of which the variety is part, unless the material exported is intended for consumption.
§ 2. For the purposes of paragraph 1^er "material" means in relation to a variety:
1° the various components in any form;
2° the product of the harvest, including whole plants and parts of plants;
3° any product made directly from the product of the harvest.
Art. XI.118. § 1^er. Any person who, in the territory of Belgium, offers or cedes to third parties, for commercial purposes, a variety of constituents of a protected variety or a variety covered by Article XI.114 is required to use a variety of names approved in accordance with Article XI.143. In written form, the varied denomination must be easily recognizable and clearly legible. If a brand, trade name or similar indication is associated with the assigned diverse denomination, this denomination must be easily recognizable as such.
§ 2. Paragraph 1^er continues to apply even after the termination of the right to obstruct.
Art. XI.119. § 1^er. The holder may not use a right conferred with respect to a denomination identical to the varied denomination to obstruct the free use of that denomination in relation to that variety, even after the extinction of the right to obtain.
§ 2. A third party may use a right conferred with respect to a denomination identical to the varied denomination to obstruct the free use of that denomination only if that right was granted prior to the attribution of the varied denomination in accordance with Article XI.143.
§ 3. When a variety is entitled to a breeder's right, the name assigned to it or any other denomination with which it could be confused may not be used, in the territory of the European Union, in relation to another variety of the same botanical species or neighbouring species or for the material of that other variety.
The King defines the species considered neighboring.
Section 4. - Length and extinction of the right to obstruct
Art. XI.120. The right of obstructor is extinguished at the end of the twenty-fifth calendar year following that of granting the right of obstructor; for varieties of vines, trees and potatoes, he died at the end of the thirtieth calendar year.
Art. XI.121. § 1^er. The licensee may waive the right to obstruct by a written and signed statement addressed to the Agency.
§ 2. The waiver shall result in the termination of the right of obstruction on the date the Agency receives the declaration referred to in subsection 1^er and subject to its registration in the register referred to in Article XI.152, hereafter referred to as "the register". However, if, on that date, the annual fee for the maintenance of the right of obligor has not yet been paid, the waiver of the right of obligor is effective at the end of the period covered by the last annual fee paid.
§ 3. The waiver may not be registered if there are, according to the registrations entered in the register, persons who, in respect of the right of obligor, hold rights or have obtained licences, or have initiated a procedure for claiming the right of obligor, unless such persons do not agree to the waiver.
§ 4. The provisions of this Article shall apply by analogy to the application of a right of obstruction.
Art. XI.122. § 1^er. The right of enforcer is declared null by the court if:
1° the conditions set out in Article XI.106 or XI.109 were not fulfilled at the time of the granting of the right of obstruction,
or
2° where the grant of the right of enforcer was essentially based on the information and documents provided by the applicant, the conditions set out in Articles XI.107 and XI.108 were not effectively met at the time of the grant of the right of obtainor,
or
3° the right of obstructor was granted to a person who was not entitled to it, unless he was transferred to the person entitled to it.
§ 2. The right of a declared void breeder shall be deemed not to have had the effects provided for in this Act from the beginning.
Art. XI.123. § 1^er. In the absence of payment of the annual fee provided for in Article XI.151 within the prescribed time limit, the holder shall be deprived of the right of his or her rights. The due date is effective on the date of the annual unpaid tax.
§ 2. The court shall declare the licensee's right of enforceability, with effect in futurum, if it is determined that the conditions set out in section XI.107 or XI.108 are no longer fulfilled.
If it is established that these conditions were no longer met on a date prior to the due date, the due date may take effect from that date.
§ 3. The Agency may issue a waiver of the licensee's right of conduct, with effect in futurum, after a stay and within a reasonable period of time that is notified to it:
1° if the holder failed to comply with the obligation referred to in Article XI.144, § 1^er,
or
2° if the licensee does not respond to an application by the Agency under Article XI.145, § 3, for the control of the maintenance of the variety,
or
3° if the licensee does not propose another appropriate denomination while the Agency plans to remove the varied denomination.
§ 4. Except in the cases referred to in paragraphs 1^er and 2, the termination shall take effect on the date referred to in the notification referred to in paragraph 3, subject to registration in the register.
Section 5. - Right of obstructor as a property object
Art. XI.124. § 1^er. The request for a right of enforcer and the right of enforcer may be transferred to a person or persons who are entitled to the right or cause.
§ 2. The transfer of a request or a right of obstruction shall be made in writing in a matter of nullity.
§ 3. Unless otherwise provided in Article XI.160, the transfer shall not affect the rights acquired by third parties before the date of the transfer.
§ 4. Any transfer must be notified to the Agency in the forms and deadlines set by the King.
§ 5. The transfer has no effect on the Agency and is only enforceable on third parties from the date of receipt by the Office of documentary evidence as required by the King and subject to its registration in the registry. However, prior to registering, a transfer is enforceable to third parties who acquired rights after the transfer date, but who were aware of the transfer on the acquisition of these rights.
Art. XI.125. § 1^er. A request for an enforcer's right or an enforcer's right may, in whole or in part, be subject to contractual licences. These licences may be exclusive or non-exclusive.
§ 2. Licences must be issued in writing only if they are invalid.
§ 3. The applicant or the licensee shall promptly notify the Agency in the manner determined by the King of the licences granted in Belgium.
§ 4. The licences shall have effect on the Agency and shall be subject to third parties only on the date of receipt by the Agency of the notification referred to in subsection 3 and subject to its registration in the register. However, prior to registration, a licence may be applied to third parties who acquired rights after the licence concession date but who were aware of the licence at the time of acquisition of these rights.
§ 5. The applicant or the licensee may invoke the rights conferred by the application or the right of the applicant to a person holding a licence that violates any of the conditions or limitations attached to the licence.
Art. XI.126. § 1^er. The Minister may issue a mandatory licence for the non-exclusive operation of a plant variety covered by a breeder's right:
1° to the person or persons who make the request, in the manner determined by the King, but only for reasons of public interest and on reasonable conditions. The King may cite some cases as examples of the public interest;
2° to the holder of the breeder's right of a variety essentially derived if the criteria set out in point 1° are met;
3° to the holder of a patent in respect of a biotechnological invention where he cannot exploit it without prejudice to an earlier breeder's right, provided that the biotechnological invention represents an important technical advance of considerable economic interest in relation to the protected plant variety and provided that the licence is awarded primarily for the supply of the national market;
4° to the holder of a patent in respect of a biotechnological invention, where the holder of an enforcer's right has, in accordance with the provisions of the Invention Patent Act, obtained a mandatory licence for the non-exclusive operation of the invention covered by that patent because he cannot exploit the right of obstructor without prejudice to that earlier patent and provided that this licence is granted primarily for the procurement of the patent.
§ 2. Licensees referred to in paragraph 1^er must establish that they have failed to apply to the holder of the right to obtain an amicable licence.
§ 3. The application shall be forwarded by the Minister to the Commission of Mandatory Licences referred to in section XI.128, so that the applicant may hear, conciliate, and, if so, give the Minister a reasoned opinion on the merits of the application. The Board, in its opinion, attached the case file.
The Minister then decides to make a reservation at the request and notify the interested parties of the decision in the manner decided by the King.
§ 4. In the case referred to in paragraph 1^er, 3°, the application for a mandatory licence is declared to be founded if the holder of the right of dominant breeder does not contest the dependence of the applicant's patent, its validity, or the fact that the invention represents an important technical progress, of considerable economic interest, in relation to the protected plant variety.
The fact for the holder of the right of prior obstructor to deny the dependency of the patent of the applicant of the licence shall in full right prevail for the licensee to exploit the invention described in its own patent as well as the dominant plant variety without the power of that owner to be prosecuted in counterfeit by the holder of the right of prior obstructor.
The contestation of the validity of the dependent patent suspends the administrative procedure relating to the recognition of the validity of the application for a licence, provided that an action in invalidity of the said patent is already brought before the competent authority by the holder of the right of dominant obligor, or that the applicant cites the applicant of the licence before the court within two months of the notification made to him of the application for a licence.
The contestation of significant technical progress, of a considerable economic interest of the dependent patent in relation to the plant variety described in the dominant breeder's right, suspends the administrative procedure relating to the recognition of the merits of the licence application, provided that the holder of the dominant breeder's right introduces, within two months of the notification made to him from the filing of the licence application, an application to the court sitting as a reference. The judicial decision is not subject to appeal or opposition.
The non-observance of the period provided for in the preceding two paragraphs leads to the infringement of the right of a dominant obstructor to make his appeal before the court.
§ 5. Within four months of the notification of the decision, the licensee and the Licensee conclude a written agreement concerning their mutual rights and obligations. The minister is informed.
In the absence of a convention within the period referred to above, the rights and mutual obligations shall be fixed by the court sitting as in reference, on the summons of the most diligent party.
A copy of the final judgment shall be transmitted free of charge to the Minister by the Clerk in the month of delivery.
Reciprocal rights and obligations specify the type of acts covered and take into account the interests of any holder of a right of enforcer who would be affected by the granting of the mandatory licence. They have a time limit, provide for the payment of adequate remuneration to the licensee and may impose on the licensee certain obligations that it is required to meet to allow the use of the mandatory licence.
The person to whom the mandatory licence is issued must have appropriate financial and technical resources to operate the licence.
As long as new elements have been made, the review of the decisions taken with respect to their reciprocal obligations may be carried out at the request of the holder of the right of authority or the Licensee, and, where appropriate, the operating conditions. The review authority is the authority of which the decision emanates and the procedure to be followed is the same as the authority to conduct the review decision.
§ 6. Where an action in a claim filed under Article XI.159, § 1^er, against the licensee is registered in the registry, the Minister may suspend the mandatory licensing procedure. He cannot resume the proceedings before entering the record of the judgment passed in force of anything judged or a decision stating that he was terminated, by any other means, to the action in claim.
In the event of a transfer of the right of obstruction that has effect to the Agency, the new licensee shall become a party to the proceeding, on the applicant's request and the application for a licence that it has made to the new licensee has not been completed within two months of the receipt of the notice by which the Agency informed the licensee of the registration of the name of the new licensee on the register. The request submitted by the applicant must be accompanied by sufficient documentary evidence to establish the insuccess of his efforts and, where appropriate, to demonstrate the steps taken with the new licensee.
§ 7. The Minister shall issue the mandatory licence by order, in accordance with the terms defined by the King. The decree is published in the Belgian Monitor.
§ 8. At the request of the holder of the right of obstruction and after having taken note of the Commission's notice, the Minister may withdraw the mandatory licence if it is the result of a judgment cast in force of a finding that the Licensee has committed himself to the holder of the right of obstructor of an unlawful act or has breached his obligations.
The withdrawal decision refers to the reason why the Board's opinion was not followed.
The withdrawal order is published by extract to the Belgian Monitor.
§ 9. As soon as the mandatory licence is granted, the relationship between the licensee and the Licensee shall be assimilated, except as set out in the granting order, to those between a grantor and a contractual Licensee.
Section 2. - The Council and the Commission
Art. XI.127. § 1^er. It is established with the SPF Economie a Conseil du droit d'obtenteur, ci-après dit "le Conseil", composed of persons particularly qualified in legal matters, genetics, botany or phytotechnology.
§ 2. The role, composition and functioning of the Council and its sections are determined by the King. Council members are appointed and revoked by the Minister.
§ 3. The Commission's operating costs are borne by the federal public service budget referred to in paragraph 1^er.
Art. XI.128. § 1^er. It is established with the Federal Public Service referred to in Article XI.127, § 1^er, a Compulsory Licence Commission, referred to as the Commission, whose mission is to carry out the tasks assigned to it by Article XI.126.
The Commission is composed of ten members appointed by the Minister.
Eight members are appointed, in equal number, on the proposal of representative organizations:
- industry and trade,
- agriculture,
- small and medium-sized enterprises, and
- consumers.
The organizations referred to in the previous paragraph are designated by the Minister.
Two members are appointed from the members of the Council referred to in Article XI.127. They remain members of the Commission for the duration of their mandate within the Commission, regardless of their membership of the Council.
The term of membership of the Commission is six years. He's renewable.
The Commission is chaired by one of its members, designated by the Minister for a term of three years renewable.
Opinions are adopted by consensus. In the absence of consensus, the opinion takes the different opinions.
The King determines how the Commission operates and organizes.
The Commission develops its rules of procedure. This comes into force after approval by the Minister.
§ 2. When the Minister receives a request for the granting of a mandatory licence, the Minister shall designate one or more qualified officers from the Commission, selected from the SPF Economy officials.
The Commission defines the mission of the agents referred to in paragraph 1^er and sets out the modalities under which these officers report on their mission. The Commission shall specify the conditions for the transmission of the documents referred to in paragraph 4 to ensure the protection of confidential information.
The officers commissioned for this purpose by the Minister are competent to collect any information, receive any written or oral testimony or testimony that they consider necessary for the fulfilment of their mission.
In performing their duties, these officers may:
1° with a warning of at least five working days or without a prior warning if they have reason to believe that there is a risk of destruction of parts useful to the instruction of the mandatory licence application, enter, during the usual hours of opening or working, in offices, premises, workshops, buildings, adjacent courses and enclosures whose access is necessary to the completion of their mission;
2to make all useful findings, to be produced, on first requisition and without displacement, the documents, documents or books required for their research and findings and to take a copy thereof;
3° to collect samples, according to the modes and conditions determined by the King;
4° seize, against receipt, the documents referred to in item 2 that are necessary for the fulfilment of their mission;
5° to commit experts whose mission they determine, according to the conditions determined by the King.
In the absence of confirmation by the Chairperson of the Commission within fifteen days, the seizure shall be lifted in full right. The person in whose hands the objects are seized may be incorporated as a judicial guardian.
The Chairperson of the Commission may release the seizure that he has confirmed, if any, upon the request of the owner of the seized objects addressed to the Commission.
By means of a warning of at least five working days or without a prior warning if they have reason to believe that there is a risk of the destruction of documents useful to the instruction of the mandatory licence application, commissioned agents may visit the inhabited premises by prior authorization of the President of the Commercial Court. Visits to manned premises must be conducted between eight and eighteen hours and be made jointly by at least two officers.
In carrying out their mission, they may require the assistance of the police services.
The commissioned officers exercise their powers under this section under the supervision of the Attorney General, without prejudice to their subordination to their superiors in the administration.
§ 3. The officers commissioned for this purpose submit their reports to the Commission. The Commission shall only issue its notice after hearing the licensee and the person who requires or has obtained the mandatory licence. Such persons may be assisted or represented either by a lawyer or by a person whom the Commission specifically associates in each case. The Commission also hears the experts and the persons it considers useful to question. It may require commissioned officers to complete additional information and provide a supplementary report.
At least one month before the date of its meeting, the Commission shall notify the persons to be heard at the meeting by registered mail. In the event of an emergency, the deadline is reduced by half.
§ 4. The Commission's operating costs are borne by the Federal Public Service budget referred to in Article XI.127, § 1^er.
Section 3. - Procedure before the Agency
Section 1^re. - Parties to the proceedings and agents
Art. XI.129. § 1^er. The following persons may be parties to the proceedings before the Agency:
1° the applicant who files an application for the right to obtain;
2° the author of an objection, within the meaning of Article XI.139, § 1^er;
3° the holder;
4° any person whose application or request is a prerequisite to a decision of the Agency.
§ 2. The Agency may authorize, upon written request, any other person not referred to in subsection 1^erbut which is directly and individually concerned, to intervene as a party to the procedure.
§ 3. Any natural or legal person, as well as any body assimilated to a legal person under the legislation under which he or she relates, is considered to be a person within the meaning of paragraphs 1^er and 2.
Art. XI.130. Any designation of an agent shall be made in accordance with the terms defined by the King.
Section 2. - Request
Art. XI.131. The filing of the application for the right to obtain is made to the Agency either in person or by mail or in any other manner determined by the King.
Art. XI.132. § 1^er. The request for the right to obtain must at least include:
1° a request for the granting of the right to obtain;
2° identification of botanical taxon;
3° information on the identity of the applicant or joint applicants;
4° the name of the breeder and the statement that no other person has, to the applicant's knowledge, participated in the creation or discovery and development of the variety. If the applicant is not the obstructor or is not the only obstructor, the applicant shall provide the relevant documentary evidence indicating in which capacity the applicant has acquired the right to the right to obstructor;
5° a provisional designation of the variety;
6° a technical description of the variety;
7° details of any prior marketing of the variety;
8° details of any other application for the variety.
§ 2. The application shall meet the conditions and forms established by this title.
§ 3. The King may specify and supplement by other elements those mentioned in paragraph 1^er.
§ 4. The applicant proposes a varied denomination that can accompany the application.
Art. XI.133. The date of filing of the application for the right of authority is the date on which an application reaches the Agency in accordance with Article XI.131, provided that the conditions of Article XI.132, § 1^er, be completed and the royalty due for the deposit under Article XI.150, § 1^erParagraph 1^er, be paid.
Art. XI.134. § 1^er. The priority right of an application is determined based on the date of receipt of this application. If applications have the same date of filing, their respective priorities shall be determined according to the order in which they have been received, if it may be established. Otherwise, they have the same priority.
§ 2. If the applicant or its predecessor in law has already applied for a right of obstruction for the variety in another contracting party than Belgium, i.e. a State or an intergovernmental organization member of the International Union for the Protection of Plant Breeding, and if the date of filing is within twelve months of the filing of the first application, the applicant shall, for its application for the right of Belgian breeder, have a right of first priority
§ 3. The right of priority is therefore that, for the purposes of Articles XI.106, XI.109 and XI.111, the date of filing of the first application is the date of filing the application for the right of Belgian obligor.
§ 4. Any claim for a priority right is terminated if the applicant does not submit a copy of the first application to the Agency within three months of the filing date. If the first application has not been written in French, Dutch or German, the Agency may also require a translation of the first application in one of these languages.
Section 3. - Review
Art. XI.135. § 1^er. The Agency considers:
1° if the application meets the conditions set out in Article XI.132;
2° where applicable, if a claim of priority is in accordance with Article XI.134, §§ 2 and 4;
and
3° if the royalty due to deposit under Article XI.150, § 1^erParagraph 1^erhas been paid within the prescribed time limit.
§ 2. If the application, while complying with the conditions set out in Article XI.133, does not meet the other conditions referred to in Article XI.132, § 2, the Agency invites the applicant to remedy any irregularities that may be found within the prescribed time limit.
§ 3. If the application does not meet the conditions set out in section XI.133, the Agency shall inform the applicant that the application is incomplete.
§ 4. In the event of an incomplete application, the applicant is responsible for the possible retention and removal of the equipment and documents.
Art. XI.136. § 1^er. The Agency shall consider, on the basis of the information provided in the application, whether the variety may be subject to a breeder's right in accordance with section XI.104, if it is a new variety within the meaning of section XI.109 and if the applicant is authorized to file an application in accordance with section XI.112.
§ 2. The Agency also considers, as defined by the King, whether the proposed varied denomination is eligible in accordance with section XI.143.
§ 3. The first applicant is considered to be entitled to the right to obtain. This provision does not apply if, before it has been decided on the application, it is demonstrated by a judicial decision that has been forcibly passed in relation to a claim of law under Article XI.159, § 3, that the right does not, or does not, return solely to the first applicant. If the identity of the only authorized person or other authorized person has been established, that person or persons may initiate proceedings as applicants.
Art. XI.137. § 1^er. If, as a result of the examinations referred to in sections XI.135 and XI.136, the Agency finds that there are no obstacles to the granting of the right of obstacle, the Agency shall make the appropriate arrangements for the technical examination of the variety to be conducted.
§ 2. The technical review is intended to verify that the conditions set out in Articles XI.106, XI.107 and XI.108 are met. This review allows the Agency to establish the official description of the variety and to obtain an official sample.
§ 3. The technical review is conducted under the direction of the Board, which may be assisted by the Commission. It is conducted in accordance with the guidelines recognized by the Agency and, where appropriate, by the Commission and in accordance with the Agency's instructions.
§ 4. The Agency is authorized to enter into technical examination cooperation agreements for varieties and to take, to that end, the required enforcement measures.
§ 5. Where the necessary culture tests and other tests have been carried out, pursuant to paragraph 4, by the service of a contracting party referred to in Article XI.134, § 2, which is responsible for granting or is in progress to the obstructor rights of that party and that the results may be obtained by the Agency and are applicable to the agro-climatic conditions of Belgium, the examination report referred to in Article XI.138 may be based on the results.
§ 6. Where the above-mentioned review report is not based on results obtained pursuant to paragraph 5, the examination shall be based on culture tests and other necessary tests carried out either by the Agency or by a third contracted institution or by the applicant at the request of the Agency.
§ 7. The applicant is required to provide any information, document or material required by the Agency for the purposes of the technical review.
§ 8. If the applicant claims a priority right in accordance with Article XI.134, § 2, it shall submit the necessary material and any other required material within two years from the date of filing of the application in accordance with Article XI.133. If the first application is withdrawn or rejected prior to the expiry of the two-year period, the Agency may require the applicant to submit the material or other parts required within a specified period of time.
Art. XI.138. § 1^er. When the technical examination conducted under Article XI.137, § 1^er, is completed, is the subject of a review report that is forwarded to the Agency. If the report demonstrates that the conditions set out in sections XI.106, XI.107 and XI.108 are met, a description of the variety is attached.
§ 2. The Board's review report and the Board's findings with respect to this review report and, where appropriate, the Commission's findings are communicated to the applicant.
§ 3. The applicant may review the file and make comments.
§ 4. If the Board considers that the review report does not allow for an informed decision, the Board may, on its own initiative after consulting the applicant or at the request of the applicant, provide for a further review. For the evaluation of the results, any additional review conducted prior to a determination under sections XI.141 and XI.142 become final shall be considered to be part of the review referred to in section XI.135.
Art. XI.139. § 1^er. Any person may make a written objection to the granting of the right to obtain.
§ 2. Without prejudice to Article XI.153, the authors of objections have access to the documents, including the results of the technical examination and, where appropriate, the description of the variety.
§ 3. Objections may only invoke the following grounds:
1° the conditions set out in Articles XI.106, XI.107, XI.108, XI.109 and XI.111 are not met;
2° the varied denomination is not in accordance with the provisions of Article XI.143.
§ 4. The King shall determine the information to be contained in the objections and shall set the time limit for the objections to be addressed and the procedure for the examination of the objections.
Art. XI.140. If an objection to non-compliance with the conditions listed in Article XI.111, §§ 1^er, 2 and 3, shall result in the withdrawal or rejection of the request for the right of the applicant and, for the same variety, the applicant shall file an application for the right of the applicant within one month of the withdrawal or final rejection of the application, the applicant may require that the date of filing of the application withdrawn or rejected be considered as the date of filing of the application.
Section 4. - Decisions
Art. XI.141. § 1^er. The Agency immediately rejects the application for the right of authority if it finds that the applicant:
1° did not remedy the irregularities referred to in Article XI.135, § 2, within the time limit provided for it to do so;
or
2° did not comply with the Agency's request under Article XI.137, § 7 or 8, within the time limit set, unless the Agency has consented to the non-representation of information, documents or materials;
or
3° did not propose an eligible designation under section XI.143 within the time limit set by the Agency.
§ 2. The Agency also rejects the application for the right to enforce:
1° if it finds that the conditions that it is required to verify in accordance with Article XI.136 are not met;
or
2° if, on the basis of the examination report referred to in Article XI.138, the conditions set out in Articles XI.106, XI.107 and XI.108 are not met.
Art. XI.142. If the Agency considers that the results of the technical review are sufficient to rule on the application and that no obstacle within the meaning of sections XI.139 and XI.141 is opposed to it, the Agency shall grant the right of obstructor and issue a certificate of obstructor. The decision includes the official description of the variety.
Art. XI.143. § 1^er. Where a right of obstruction is granted, the Agency approves, for the variety in question, the varied denomination proposed by the applicant in accordance with Article XI.132, § 3, if it considers, on the basis of the examination conducted in accordance with Article XI.136, § 2, that the denomination is eligible.
§ 2. The King determines the conditions to be met by the various name to be eligible, as well as the conditions of his employment.
§ 3. The name is intended to be the generic designation of the variety.
§ 4. The Agency shall record the name at the same time as the right to obtain is granted.
Section 5. - Maintenance of the right to obstruct
Art. XI.144. § 1^er. The licensee is required to maintain the protected variety or, where appropriate, its hereditary constituents for the duration of the law.
§ 2. The holder may be required to ensure the durability of the official sample.
Art. XI.145. § 1^er. The Agency may control that the variety and, where appropriate, its hereditary constituents are maintained throughout the duration of the protection.
§ 2. The Agency is authorized to enter into cooperation agreements for the control of the maintenance of varieties and to take, to that end, the necessary enforcement measures.
§ 3. Upon request by the Agency, the licensee is required to submit to the Agency or any party designated by the Agency, within the specified time limit, the information, documents or material deemed necessary for the control of the maintenance of the protected variety and not to hinder the examination of the measures taken for the maintenance of the protected variety.
§ 4. Where there are indications that the variety is not maintained and, where appropriate, the suspicions are not dissipated by the information and documents provided by the licensee pursuant to subsection 3, the Agency orders a control over the maintenance of the variety, which sets out the terms and conditions.
The licensee is required to permit the inspection of the material of the variety concerned and the place in which the variety is kept, so that the information required to assess whether the variety is maintained can be collected.
The licensee is required to keep the necessary documentation to verify that appropriate measures have been taken.
§ 5. The control includes crop testing or other tests in which the material provided by the licensee is compared to the official description or sample of the variety.
§ 6. Where the control discloses that the licensee has not maintained the variety, the licensee shall, upon request of the Agency or at its request, be heard before a decision to be waived under section XI.123.
Art. XI.146. Upon request by the Agency, the licensee is required to provide the Agency or any party designated by the Agency, within the specified time limit, appropriate samples of the protected variety or, where applicable, its hereditary constituents for the purposes of:
1° of the constitution or renewal of the official sample of the variety,
or
2° of the conduct of comparative examinations of varieties for protection purposes.
Art. XI.147. § 1^er. The Agency, in accordance with the terms and conditions defined by the King, amends a variety of names assigned in accordance with section XI.143 if the Agency finds that this name does not meet or no longer meet the conditions set out in this section and if, in the presence of a prior right of a third party, the licensee accepts the amendment or if a judicial decision passed in force of a thing deemed to prohibit the use of the varied name by the holder or any person holding of a rent.
§ 2. The Agency invites the licensee to propose a modified varied denomination and continues the procedure in accordance with section XI.143.
§ 3. The amended name that is proposed may be objected to in accordance with Article XI.139, § 3, 2°.
Section 6. - Other procedural provisions
Art. XI.148. § 1^er. Where, despite all due diligence in the particular circumstances, the applicant for an enforcer's right or the holder or any other party to a proceeding before the Agency has not been in a position to observe a time limit for the Agency, it may, upon request, be restored in its rights if that obstacle has been directly affected, under the provisions of this Act, the loss of a right or a right of
§ 2. The request shall be submitted in writing within two months of the termination of the incapacity. The uncompleted act must be done within that time. The request is admissible only within one year of the expiry of the period not observed.
§ 3. The request is duly substantiated and indicates the facts and justifications invoked in its support. It is deemed to be filed only after payment of the restoration fee in the fees, within the time limit set out in paragraph 2. The Agency decides on the application.
§ 4. This section does not apply to the time limits set out in subsection 2 and to section XI.134.
§ 5. Any person who has, in good faith, during the period between the loss of a related right within the meaning of paragraph 1^er, at the request or grant of the right to obtain and the restoration of the said right, exploited or made effective and serious preparations to exploit the material of a variety subject to a published application of the right to obtain or a protected variety may, as a free measure, continue this operation in its establishment or for the purposes of its establishment.
Art. XI.149. § 1^er. Where an action in a claim filed under Article XI.159, § 3, against the applicant is registered in the register, the Agency may suspend the proceedings. The Agency may specify the date on which it intends to proceed.
§ 2. Where a decision taken in force of action has been rendered on the claim action referred to in paragraph 1^er or that a decision finding that it has been terminated, by any other means, in that action, is entered in the registry, the Agency resumes the procedure. It may resume proceedings on a previous date, but not before the date established under paragraph 1^er.
§ 3. Where the right to the right to the right to obtain is transferred to the benefit of a third party and the transfer has effect with respect to the Agency, the third party concerned may substitute for the first applicant, provided that the transfer is notified to the Agency within one month of the registration of the decision that is deemed to be in the register. The royalties payable under section XI.150 already paid by the first applicant are deemed to have been paid by the second applicant.
Section 7. - Claims and taxes
Art. XI.150. § 1^er. The King shall determine the amount of royalties that the applicant must pay for the filing and instruction of his application.
The King also fixes:
1° the amount of royalties due for registrations made by the Agency pursuant to sections XI.124, XI.125 and XI.126,
2° the amount of royalties due to the issuance by the Agency of certificates and copies,
3° the amount of royalties for the control of the maintenance of the variety,
4° the amount of the entire restitution fee.
§ 2. If royalties due under paragraph 1^erParagraph 1^er, are not paid, the applicant is deemed to waive the application.
§ 3. The King sets out how royalties are collected.
§ 4. Royalties are not refundable.
Art. XI.151. § 1^er. In order to maintain the right of authority, the Agency receives annual fees for the duration of the right.
§ 2. The annual fee must be paid in advance. His payment expires on the last day of the month of the anniversary of the grant of the right to obtain.
The annual fee for the first year is paid before the end of the month following the month in which the right of enforcer is granted.
When the payment of the annual tax has not been made on maturity, the tax may still be paid increased by a surtax, within two months of the annual tax due date.
§ 3. The King sets the amount and modalities for collecting the annual tax and surtax.
§ 4. The annual fee is not refundable.
Section 8. - Record keeping
Art. XI.152. § 1^er. The Agency maintains a record of the application for the right to enforce and the rights of enforcer granted.
§ 2. The following entries are included in the register:
1° requests for the right to obtain with reference to the taxon, the provisional designation of the variety, the date of filing, and the name and address of the applicant, the applicant and any agent concerned;
2° any case of termination of proceedings concerning requests for the right to obtain, with reference to the data referred to in point 1°;
3° the proposals for a varied name;
4° changes relating to the identity of the applicant or his agent;
5° any notified transfer of an application, with reference to the name and address of the right or causeholders;
6° the notified contractual licences, with reference to the name and address of the Licensees;
7° any contestation concerning civil rights, as well as the decision taken in force of a ruling concerning this action or any abandonment of it.
§ 3. After the grant of the right to obtain, the following registrations are also included in the register:
1° the species and the name of the variety;
2° the official description of the variety;
3° in the case of varieties requiring, for the production of material, the repeated use of equipment of certain components, the mention of these components;
4° the name and address of the holder, the breeder and any agent concerned;
5° the date of commencement and termination of the right of obstacle, and the reasons for its termination;
6° any notified transfer of a right of obstruction, with reference to the name and address of the right or cause holders;
7° notified contractual licences, with reference to the name and address of the Licensees;
8° Mandatory licences and decisions relating to them, with reference to the names and addresses of the Licensees;
9° any modification in a right of obstructor;
10° if both the holder of an original variety and the breeder of a variety essentially derived from the original variety apply, the identification of varieties as original and essentially derived varieties, including the various names and names of the parties concerned. An application by only one of the parties concerned is sufficient only if it has obtained, i.e. the uncontested recognition of the other party in accordance with Article XI.161, or a judicial decision passed in force of something deemed to include identification of the varieties concerned as original and essentially derived varieties;
11° any contestation concerning civil rights and the decision taken in force of a ruling concerning this action in court or any abandonment of it.
§ 4. The King may fix any other details or other conditions relating to registration in the registry.
§ 5. The entries referred to in paragraphs 2, 7°, and 3, 11°, shall be made by the Registrar of the Jurisdiction having ruled on the dispute in question, upon request of the person who introduced the action or of any interested person.
§ 6. The Agency may, with respect to the number and type of characters or the established expressions of these characters, make the official description of the variety, if necessary, appropriate to the principles applicable to the description of the varieties of the taxon concerned, in order to make the description of the variety comparable to the descriptions of other varieties of the taxon concerned.
Art. XI.153. § 1^er. The register referred to in section XI.152 is open to public inspection at the Agency premises.
§ 2. Excerpts from the register are issued at the request of any interested person.
§ 3. Any person with a legitimate interest may, as defined by the King:
1° consult the exhibits relating to a request for the right to obtain,
2° consult the exhibits relating to a right of enforcer already granted,
3° visit crop testing for technical examination of a variety,
and
4° visit crop testing for technical verification of the maintenance of a variety.
§ 4. In the case of varieties for which equipment with specific components must be used on several occasions for the production of materials of the variety, upon request of the applicant for the right to obtain, all information relating to components, including their culture, is excluded from the public consultation. Such a request is no longer admissible when it has been decided on the request for the right to obtain.
Art. XI.154. Registrations to the register imposed by Article XI.152, § 2, and § 3, 1°, 4°, 5°, 6°, 7°, 8°, 9°, 10° and 11°, are published by the Office in the manner fixed by the King.
Section 4. - Respect for rights
Section 1^re. - Counterfeit
Art. XI.155. Constitutes a counterfeit:
1° the performance, without being authorized, of any of the acts referred to in Article XI.113, § 2, in respect of a protected variety,
or
2° the use of a varied denomination contrary to the conditions of Article XI.118, § 1^er,
or
3° the use, contrary to Article XI.119, § 3, of the varied denomination of a protected variety or of a denomination that may be confused with that denomination.
Art. XI.156. § 1^er. The infringement action may be brought from the date on which the grant of the right to obtain is published and only for acts of counterfeit committed from that date.
§ 2. The holder or usufructier of a right of enforcer is entitled to act in counterfeit.
However, the recipient of a mandatory licence granted under Article XI.126, § 1^er, may act in counterfeit if, after reinstatement, the holder or the usufructier of the right to obstruct does not undertake such action.
The beneficiary of an exclusive licence may act in counterfeit unless otherwise provided by the licence contract.
Any Licensee is entitled to intervene in the proceeding in counterfeiting initiated by the licensee or the Usufructier in order to obtain compensation for the harm he suffered.
Art. XI.157. The licensee may require reasonable compensation on the part of any person who has completed, during the period between the publication of the application for the right of obligor and the granting of the right of obligor, an act that would have been prohibited after that period under the right of obligor.
Art. XI.158. The provisions of civil law to punish cases of infringement of the right of Belgian breeders are also applicable to cases of infringement of community protection of plant varieties granted under Council Regulation (EC) No. 2100/94 of 27 July 1994 establishing a regime of community protection of plant varieties.
Section 2. - Recognition of the right of breeder and identification of a variety
Art. XI.159. § 1^er. If the right of obstructor has been granted to a person not authorized under Article XI.111, the authorized person may, without prejudice to any other rights or shares, claim the transfer to his or her advantage of the right of obstructor.
§ 2. If the injured person is entitled only to a part of the right of conduct, the aggrieved person may, in accordance with the provisions of paragraph 1^er, claim recognition as a cotitular.
§ 3. The actions referred to in paragraphs 1^er and 2 are also recognized mutatis mutandis to the person authorized in respect of any application for the granting of the right of obligor filed by an applicant who was not entitled to it or was not the only person entitled to it.
Art. XI.160. § 1^er. When a full change of applicant or licensee occurs as a result of a judicial decision that is deemed to be in force on the basis of a claim action, the licences are terminated by the registration of the person authorized in the register.
§ 2. If, prior to the introduction of the claim action, the applicant, the licensee or a Licensee has carried out any of the acts referred to in Article XI.113, § 2 or made actual and serious preparations for that purpose, he or she may continue or perform such acts, provided that a non-exclusive licence is requested by the new applicant or licensee registered in the register.
§ 3. Subsection 2 does not apply where the applicant, licensee or Licensee was in bad faith at the time of the completion of the acts or preparations for that purpose.
Art. XI.161. The holder of an initial variety and the breeder of a predominantly derived variety have the right to obtain recognition of the identification of the varieties concerned as an initial and essentially derived variety.
Section 3. - Prescription
Art. XI.162. § 1^er. The actions referred to in Articles XI.156 and XI.157 shall be prescribed by three years from the date on which the right of obstructor was finally granted and to which the holder became aware of the act and identity of the offender's author and, in the absence of that knowledge, thirty years after the act was performed.
§ 2. The actions referred to in Article XI.159, §§ 1^er and 2, shall be prescribed by five years from the date of publication of the grant of the right to obtain. This provision does not apply if the licensee knew, at the time of the granting or acquisition of the right, that it was not entitled or that it was not the only person entitled to the right to obtain.
§ 3. The actions referred to in Article XI.159, § 3, shall be prescribed by five years from the date of publication of the application for the right of obligor. This provision does not apply if the applicant knew, at the time of the application or the acquisition of the application, that he was not entitled or that he was not the only person entitled to the application.
Part 4. - Brands and drawings or models
Art. XI.163. Subject to provisions relating to cessation action as referred to in Book XVII, Title 1^er, Chapter 4, and the provisions relating to the exercise of supervision and the search for and recognition of offences and the applicable sanctions referred to in Book XV, the protection of trademarks and drawings or models is governed by the Benelux Convention on Intellectual Property (marks and drawings or models), made in The Hague on 25 February 2005.
Part 5. - Copyright and neighbouring rights
Section 1^er. - General
Art. XI.164. This title transposes the following guidelines:
- Commission Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules of copyright and related rights of copyright applicable to satellite broadcasting and cable broadcasting;
- Directive 96/9/EC of the European Parliament and the Council of 11 March 1996 on the legal protection of databases;
- Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and neighbouring rights in the information society;
- Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the right of action for the benefit of the author of an original work of art;
- Directive 2006/115/EC of the European Parliament and the Council of 12 December 2006 on the right to leasing and lending and certain rights of copyright in the field of intellectual property;
- Directive 2006/116/EC of the European Parliament and the Council of 12 December 2006 on the duration of protection of copyright and certain neighbouring rights.
Section 2. - Copyright
Section 1^re. - Copyright in general
Art. XI.165. § 1^er. The author of a literary or artistic work alone has the right to reproduce or authorize reproduction, in any way and in any form, whether direct or indirect, provisional or permanent, in whole or in part.
This right includes the exclusive right to authorize adaptation or translation.
This right also includes the exclusive right to authorize the lease or loan.
The author of a literary or artistic work alone has the right to communicate it to the public by any process, including by making available to the public in such a way that everyone can have access to the place and at the time he chooses individually.
The author of a literary or artistic work alone has the right to authorize the distribution to the public, by sale or otherwise, of the original of his work or copies of it.
The first sale or first other transfer of ownership of the original or a copy of a literary or artistic work in the European Union by the author or with his consent, exhausts the right of distribution of this original or that copy in the European Union.
§ 2. The author of a literary or artistic work enjoys an inalienable moral right on it.
The overall waiver of the future exercise of this right is zero.
This includes the right to disclose the work.
Undisclosed works are elusive.
The author has the right to claim or refuse the paternity of the work.
He has the right to respect his work, allowing him to oppose any modification of his work.
Notwithstanding any renunciation, he retains the right to object to any deformation, mutilation or other modification of that work or to any other violation of the same work, prejudicial to his honour or reputation.
Art. XI.166. § 1^er. The copyright extends for seven years after the death of the author to the benefit of the person he or she has designated for that purpose or, if not, to his or her heirs in accordance with Article XI.171.
§ 2. Without prejudice to the second and third paragraph of this paragraph, where the work is the product of a collaboration, the copyright exists for the benefit of all persons entitled up to seven years after the death of the last surviving co-author.
The duration of protection of an audiovisual work expires seventy years after the death of the last survivor among the following persons: the principal director, the author of the script, the author of the texts and the author of the musical compositions with or without words specially created for the work.
The duration of protection of a musical composition with words ends seventy years after the death of the last survivor among the following persons, whether or not these persons are designated as co-authors: the author of the lyrics and the composer of the musical composition, provided that the two contributions were specially created for the musical composition with words.
§ 3. For anonymous or pseudonym works, the duration of copyright is seventy years from the time the work is lawfully made accessible to the public.
However, where the pseudonym adopted by the author leaves no doubt about his identity or if the author is made known during the period referred to in the preceding paragraph, the duration of protection of the work is that indicated in paragraph 1^er .
In the case of anonymous or pseudonym works that have not been legally made available to the public during the seven years following their creation, the protection ends at the expiry of this period.
§ 4. When a work is published by volumes, parts, booklets, numbers or episodes and the seventy-year period begins to run from the time the work is made accessible to the public, the short duration of protection for each element taken separately.
§ 5. The duration of protection of the original photographs, in that they are an intellectual creation specific to their author, is determined in accordance with the preceding paragraphs.
§ 6. Any person who, after the expiry of copyright protection, publishes lawfully or communicates lawfully to the public for the first time an unpublished work, enjoys equal protection to that of the author's heritage rights. The duration of protection of these rights is twenty-five years from the moment when, for the first time, the work was published lawfully or communicated lawfully to the public.
§ 7. The durations specified in this article shall be calculated from 1^er January of the year following the generator fact.
Art. XI.167. § 1^er. Heritage rights are movable, volatile and communicable, in whole or in part, in accordance with the Civil Code rules. They may be subject to an alienation or a simple or exclusive licence.
With respect to the author, all contracts prove in writing.
The contractual provisions relating to copyright and operating methods are strictly interpreted. The transfer of the object that incorporates a work does not take the right to exploit it; the author shall have access to his or her work to a reasonable extent for the exercise of his or her heritage rights.
For each operating mode, the author's remuneration, the extent and duration of the assignment must be determined expressly.
The assignee is required to ensure the operation of the work in accordance with the honest uses of the profession.
Notwithstanding any provision to the contrary, the assignment of rights relating to unknown forms of exploitation is null and void.
§ 2. The assignment of property rights relating to future works is only valid for a limited period of time and provided that the types of works on which the assignment is carried out are determined.
§ 3. When works are created by an author pursuant to a contract of employment or status, heritage rights may be transferred to the employer provided that the assignment of rights is expressly provided for and that the creation of the work enters the scope of the contract or the statute.
When works are created by an author pursuant to a contract of order, heritage rights may be transferred to the author who has placed the order, provided that the activity of the latter falls within the non-cultural industry or advertising, that the work is intended for that activity and that the assignment of rights is expressly provided.
In such cases, paragraph 1^erparagraphs 4 to 6, and § 2 do not apply.
The clause that confers on the assignee of a copyright the right to exploit the work in an unknown form on the date of the contract or the undertaking under status must be express and stipulate participation in the profit generated by that exploitation.
Collective agreements can determine the scope and modalities of the transfer.
Art. XI.168. When copyright is indivised, the exercise of this right is regulated by the conventions. In the absence of conventions, none of the authors can exercise it in isolation, except the courts to decide in case of disagreement.
However, each of the authors remains free to pursue, on his behalf and without the intervention of others, the infringement that would be brought to copyright and to claim damages on his part.
The courts will always be allowed to publish the work on the measures they consider useful to prescribe; they may decide at the request of the opponent, that the opponent will not participate in the costs or profits of the exploitation or that his name will not appear on the work.
Art. XI.169. When it is a collaborative work where the authors' contribution can be individualized, these authors cannot, unless otherwise agreed, deal with their work with new collaborators.
Nevertheless, they will have the right to exploit their contribution in isolation, provided that this exploitation does not prejudice the common work.
Art. XI.170. The copyright holder is the natural person who created the work.
Any person who appears as such on the work, on a reproduction of the work, or in relation to a communication to the public of the work, because of the mention of his name or an acronym to identify it.
The publisher of an anonymous or pseudonym work is deemed, in respect of third parties, to be the author.
Art. XI.171. After the author's death, the rights determined in Article XI.165, § 1^er, shall be exercised, during the period of copyright protection, by its heirs or legatees, unless the author has assigned them to a specified person, taking into account the legal reservation that is returned to the heirs.
After the author's death, the rights set out in Article XI.165, § 2, shall be exercised by his heirs or legatees, unless he has designated a person for that purpose.
In the event of disagreement, it is proceeded as provided for in Article XI.168.
Section 2. - Provisions specific to literary works
Art. XI.172. § 1^er. By literary works, we hear writings of all kinds, as well as lessons, lectures, speeches, sermons or any other oral manifestation of thought.
Speeches made in parliamentary assemblies, public hearings of courts or political meetings may be freely reproduced and communicated to the public, but only to the author is entitled to draw them apart.
§ 2. Official acts of authority do not give rise to copyright.
Section 3. - Special provisions for graphic or plastic works
Art. XI.173. Unless otherwise agreed, the assignment of a work of plastic or graphic art shall, for the benefit of the purchaser, take advantage of the assignment of the right to exhibit it in such a way that, under conditions not prejudicial to the honour or reputation of the author, but not to the assignment of the other rights of the author.
Unless otherwise agreed or used, the assignment of a work of plastic or graphic art takes the ban on other identical copies.
Art. XI.174. Neither the author, nor the owner of a portrait, nor any other possessor or holder of a portrait has the right to reproduce or communicate it to the public without the consent of the person represented or that of his or her successors for twenty years from his or her death.
Art. XI.175. § 1^er. For any act of resale of an original work of art in which as sellers, buyers or intermediaries, professionals of the art market, after the first assignment by the author, it is due to the author by the seller an inalienable right of suite, to which it cannot be waived, even in advance, calculated on the price of resale.
For the purposes of this section, "original artwork", works of graphic or plastic art such as paintings, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs, as long as they are made by the artist himself or by the artist himself or by the original works.
The copies of works of art referred to in this section, which have been executed in limited quantities by the artist himself or under his or her responsibility, are considered to be original works of art for the purposes of this section. Such copies are in principle numbered or signed, or otherwise authorized by the artist.
§ 2. However, the right of action does not apply to an act of resale when the seller acquired the work directly of the artist less than three years before this resale and that the resale price does not exceed 10,000 euros. The burden of proof of compliance with these conditions rests with the seller.
§ 3. The right of succession is vested in the heirs and other authors ' rights under articles XI.166 and XI.171.
§ 4. Without prejudice to the provisions of international conventions, reciprocity applies to the right of action.
Art. XI.176. The right of action is calculated on the price of non-tax sale, provided that it reaches a minimum of 2,000 euros. In order to remove the disparities that have negative effects on the functioning of the domestic market, the King may modify the amount of 2,000 euros, without however being able to set an amount greater than 3,000 euros. The amount of the right of action is as follows:
- 4% for the sale price up to 50,000 euros;
- 3% for the sale price between 50,000,01 euros and 200,000 euros;
- 1% for the sale price between 200,000,01 euros and 350,000 euros;
- 0.5% for the sale price between 350,000,01 euros and 500,000 euros;
- 0.25 per cent for the selling price of 500,000 euros.
However, the total amount of the right cannot exceed 12.500 euros.
Art. XI.177. § 1^er. In respect of third parties the right of action may only be exercised by the single platform referred to in § 2.
When the author has not entrusted the management of his rights to a rights management company, the unique platform is deemed to be responsible for managing his rights. The author may assert his rights within five years from the date of resale of his work.
§ 2. For the purpose of law-enforcement management, a single platform is created by management companies that manage law-enforcement. The declaration of resales referred to in Article XI.175, § 1^er, and the payment of the right of action is made via the single platform. The King determines, by order deliberately in the Council of Ministers, the conditions to which the single platform must meet.
Art. XI.178. § 1^er. For resales made as part of a public auction, art market professionals involved in resale as sellers, buyers or intermediaries, the public officer and the seller are jointly required to notify the sale in the month of the resale to the single platform. They are also jointly obliged to pay through the single platform the rights due within two months of the notification.
For resales that are not made as part of a public auction sale, including sales that have given rise to the application of Article XI.175, § 2, art market professionals involved in resale as sellers, buyers or intermediaries and the seller are jointly and severally required to notify the sale within the time and manner fixed by the King to the single platform. They are also jointly obliged to pay through the single platform the rights due within two months of the notification.
Statements of resales referred to in subparagraphs 1^er and 2 shall, from 1^er January 2015, be made electronically to the single platform using a system that meets the conditions set by the King. The King may change the date provided for in the previous sentence.
§ 2. The author's action is prescribed by five years from resale.
§ 3. At the expiry of the statute of limitations set out in paragraph 2, the management societies designated by the King shall distribute the rights that could not be paid to the entitled persons, in accordance with the terms fixed by the King.
§ 4. For a period of three years after resale, the single platform may require professionals in the art market any information necessary for the collection and distribution of the right of action, in accordance with the rules laid down by the King.
The authors may also, in accordance with the rules laid down by the King, require from the single platform referred to in Article XI.177, § 2 any information necessary for the collection and distribution of the law in succession.
§ 5. Management companies referred to in Article XI.177, § 1^er, publish in the manner and within the time fixed by the King on the site of the single platform the resales which have been declared to them.
Section 4. - Provisions specific to audiovisual works
Art. XI.179. In addition to the principal director, they have the quality of authors of an audiovisual work the physical people who collaborated there.
Alleged, unless otherwise proven, authors of an audiovisual work carried out in collaboration:
(a) the author of the scenario;
(b) the author of adaptation;
(c) the author of the texts;
(d) the graphic author for animation works or animation sequences of audiovisual works that represent an important part of this work;
e) the author of musical compositions with or without words specially made for the work
The authors of the original work are assimilated to the authors of the new work if their contribution is used.
Art. XI.180. The author who refuses to complete his contribution to the audiovisual work or is unable to do so will not be able to oppose the use of the work for the completion of the work.
It will have, for this contribution, the quality of the author and the rights derived from it.
Art. XI.181. The audiovisual work is deemed to be completed when the final version has been agreed between the principal director and the producer.
The moral right of the authors can only be exercised by them on the completed audiovisual work.
It is forbidden to destroy the matrix of this version.
Art. XI.182. Unless otherwise stipulated, the authors of an audiovisual work as well as the authors of a creative element that is lawfully integrated or used in an audiovisual work, with the exception of the authors of musical compositions, assign to the producers the exclusive right of the audiovisual exploitation of the work, including the rights necessary for this exploitation such as the right to add subtitles or double the work XI.1 without prejudice to the provisions of Articles XI.1
Art. XI.183. § 1^er. Except for audiovisual works of the non-cultural industry or advertising, the authors of the audiovisual work are entitled to separate remuneration for each mode of operation.
§ 2. The amount of the remuneration is, unless otherwise stipulated, proportional to the revenues resulting from the exploitation of the audiovisual work. In this case, the producer sends to the author at least once a year, a statement of revenues that he has collected according to each operating mode.
Art. XI.184. The award of the right of audiovisual adaptation of a pre-existing work must be the subject of a contract distinct from the contract of editing the work.
The beneficiary of the right undertakes to exploit the work in accordance with the honest uses of the profession and to pay to the author, unless otherwise stipulated, a remuneration proportional to the income he has received.
Art. XI.185. The bankruptcy of the producer, the judicial reorganization or the liquidation of his company do not result in the termination of contracts with the authors of the audiovisual work.
When the realization or operation of the work is continued, the curator or liquidator, as the case may be, is bound to comply with all the obligations of the producer with respect to the authors.
In the event of the sale of all or part of the undertaking or its liquidation, the liquidator or curator, as the case may be, shall establish a separate lot for each audiovisual work whose operating rights may be subject to an assignment or auction.
It has the obligation to notify, in a matter of nullity, each of the other producers of the work, the director and other authors, by registered mail with acknowledgement of receipt at least one month before the assignment or before any other auction sale or sale procedure.
The buyer is bound by the assignor's obligations.
The director and, in his absence, the other authors have a right of preference over the work, unless one of the co-producers claims to acquire it. If there is no agreement, the purchase price is fixed by court decision.
If one of the co-producers has not declared a purchaser within one month of the notification made to him, the director may exercise his right of preference for one month. After this period, the authors have one month to exercise their right of preference.
The exercise of this right is done by the exploitation of bailiffs or by registered consignment with acknowledgement of receipt to the curator or liquidator, as the case may be.
Recipients of a right of preference may waive it by exploit of bailiff or by registered mail with acknowledgement of receipt addressed to the curator.
When the activity of the producer has ceased for more than twelve months or when the liquidation is published without the sale of the audiovisual work more than twelve months after its publication, each author of the audiovisual work may request the termination of his contract.
Section 5. - Provisions specific to databases
Art. XI.186. The databases that, by the choice or disposition of the materials, constitute an intellectual creation specific to their author are protected as such by copyright.
The protection of databases by copyright does not extend to works, data or elements themselves and is without prejudice to any existing right on the works, data or other elements contained in the database.
Art. XI.187. Except as contractual or statutory otherwise provided, only the employer is presumed to assign property rights relating to databases created in the non-cultural industry by one or more employees or agents in the performance of their duties or according to the instructions of their employer.
Collective agreements can determine the extent and modalities of the presumption of assignment.
Art. XI.188. The legitimate user of a database or copies thereof may perform the acts referred to in Article XI.165, § 1^er, which are necessary to access the content of the database and its normal use by itself without the author's permission of the database.
To the extent that the legitimate user is authorized to use only part of the database, paragraph 1^eronly applies to that part.
The provisions of subparagraphs 1^er and two are imperative.
Section 6. - Exceptions to the author's heritage rights
Art. XI.189. § 1^er. The citations, drawn from a lawfully published work, carried out for purposes of criticism, controversy, journal, teaching, or in scientific work, in accordance with the honest uses of the profession and to the extent justified by the purpose pursued, do not infringe copyright.
The citations referred to in the previous paragraph should refer to the source and name of the author, unless this is impossible.
§ 2. The creation of anthology intended for teaching that does not seek any direct or indirect commercial or economic advantage requires the agreement of the authors whose extracts of works are thus grouped together. However, after the author's death, the consent of the entitled person is not required provided that the choice of the extract, its presentation and its place respects the moral rights of the author and that fair remuneration is paid, to be agreed between the parties or, if not, to be fixed by the judge in accordance with the honest practices.
§ 3. The author may not prohibit provisional acts of reproduction that are transient or accessories and constitute an integral and essential part of a technical process and whose sole purpose is to allow:
- a transmission in a network between third parties through an intermediary; or
- licit use,
a protected work, and that have no independent economic significance.
Art. XI.190. When the work was lawfully published, the author cannot prohibit:
1° reproduction and communication to the public, for the purpose of information, of short fragments of works or works of plastic or graphic art in their entirety on the occasion of reports of current events;
The reproduction and communication to the public of the work on the occasion of news events reports in accordance with the preceding paragraph must be justified by the purpose of information being pursued, and the source, including the author's name, must be mentioned, unless it is impossible.
2° the reproduction and communication to the public of the work exhibited in a place accessible to the public, when the purpose of reproduction or communication to the public is not the work itself;
3° free and private execution carried out in the family circle;
4° the free execution carried out in the context of school activities, which may take place both in the educational establishment and outside the educational institution;
5° the fragmentary or integral reproduction of articles, works of plastic or graphic art or that of short fragments of other works, with the exception of partitions, when this reproduction is carried out on paper or on a similar medium, by means of any photographic technique or any other method producing a similar result, for a strictly private purpose and does not prejudice the normal exploitation of the work;
6° the fragmentary or integral reproduction of articles, works of plastic or graphic art or that of short fragments of other works when this reproduction is carried out on paper or on a similar medium, by means of any photographic technique or of any other method producing a similar result, for the purposes of illustration of the teaching or scientific research, to the extent justified by the non-profit pursued and which does not bear less harm to the normal exploitation
7° the fragmentary or integral reproduction of articles, works of plastic or graphic art or that of short fragments of other works, when this reproduction is carried out on any medium other than on paper or similar medium, for the purpose of illustrating the teaching or scientific research to the extent justified by the non-profit pursued and does not prejudice the normal exploitation of the work, to the extent that it is impossible to include
8° the communication of works when this communication is carried out for the purpose of illustrating the teaching or scientific research by institutions recognized or officially organized for this purpose by the public authorities and provided that this communication is justified by the non-profit purpose pursued, is within the framework of the normal activities of the institution, or carried out only by means of closed transmission networks of the institution and does not affect the normal exploitation of the property less
9° the reproduction on any medium other than on paper or similar support, of works, carried out in the family circle and reserved for it;
10° caricature, parody or pastiche, taking into account honest uses;
11° the free execution of a work during a public examination, when the purpose of the execution is not the work itself, but the evaluation of the performer or performers of the work in order to award them a certificate of qualification, a diploma or a title within the framework of a recognized type of teaching;
12° the limited reproduction to a number of copies determined according to and justified by the purpose of preserving the cultural and scientific heritage, carried out by libraries accessible to the public, museums or archives, which do not seek any direct or indirect commercial or economic advantage, provided that this does not affect the normal exploitation of the work or cause unjustified prejudice to the legitimate interests of the author.
The materials thus produced remain the property of these institutions that prohibit commercial or lucrative use.
The author may have access to it, with strict respect for the preservation of the work and with fair remuneration for the work performed by these institutions;
13° the communication, including by making available to individuals, for research or private studies, works that are not offered for sale or subject to licensing conditions, and are part of collections of libraries accessible to the public, educational and scientific institutions, museums or archives that do not seek any direct or indirect commercial or economic advantage, through special terminals accessible to the premises of these institutions;
14° Ephemeral recordings of works carried out by broadcasting organizations for their own programming and by their own means, including by means of persons acting on their behalf and under their responsibility;
15° the reproduction and communication to the public of works for the benefit of persons with disabilities who are directly related to the disability in question and are of a non-commercial nature, to the extent required by the said disability, provided that this does not affect the normal exploitation of the work or cause unjustified prejudice to the legitimate interests of the author;
16° reproduction and communication to the public to announce public exhibitions or sales of artistic works, to the extent necessary to promote the event in question, excluding any other commercial use;
17° the reproduction of programs, by hospitals, penitentiaries, youth aid or assistance to persons with disabilities recognized, provided that these institutions do not pursue a profit purpose and that this reproduction is reserved for the exclusive use of the natural persons who reside there.
Art. XI.191. § 1^er. By derogation from Article XI.190, where the database has been lawfully published, the author cannot prohibit:
1° the fragmentary or integral reproduction on paper or on a similar medium, using any photographic technique or any other method producing a similar result of data bases fixed on paper or on a similar medium when this reproduction is carried out for a strictly private purpose and does not prejudice the normal exploitation of the work;
2° the fragmentary or integral reproduction on paper or on a similar medium, using any photographic technique or any other method producing a similar result, when this reproduction is carried out for the purposes of illustration of teaching or scientific research to the extent justified by the non-profit pursued and does not prejudice the normal exploitation of the work;
3° the fragmentary or integral reproduction on any medium other than on paper or on a similar medium, when this reproduction is carried out for purposes of illustration of the teaching or scientific research to the extent justified by the non-profit pursued and does not prejudice the normal exploitation of the work;
4° the communication of databases when this communication is carried out for the purpose of illustrating the teaching or scientific research by institutions officially recognized or organized for this purpose by the public authorities and provided that this communication is justified by the non-profit purpose pursued, is within the framework of the normal activities of the institution, is carried out only by means of closed transmission networks of the institution and does not prejudice the normal operation of the institution;
5° the reproduction and communication to the public of a database when these acts are carried out for public security or for administrative or judicial proceedings and do not prejudice the normal operation of the database.
Section XI.190, 1° to 4°, 10° and 11° applies by analogy to databases.
§ 2. When the database is reproduced or communicated for the purposes of illustration of the teaching or scientific research, the name of the author and the title of the database must be mentioned, unless it is impossible.
Art. XI.192. § 1^er. The author cannot prohibit the lending of literary works, databases, photographic works, scores of musical works, sound works and audiovisual works when this loan is organized for educational and cultural purposes by institutions recognized or officially organized for this purpose by the public authorities.
§ 2. The loan of sound or audiovisual works can only take place two months after the first distribution to the public of the work.
After consultation with the institutions and rights management companies, the King may, for all phonograms and first film fixations or for some of them, extend or shorten the time limit provided for in the preceding paragraph.
§ 3. Institutions referred to in paragraph 1^er that the King designates, may import copies of literary works, databases, photographic works and sound or audio-visual works, as well as scores of musical works that have been the subject of a first lawful sale outside the European Union and that are not distributed to the public in the territory of it, when this import is carried out for purposes of public loan organized in a purpose
Art. XI.193. The provisions of articles XI.189, XI.190, XI.191 and XI.192, §§ 1^er and 3 are imperative.
Section 7. - Common provision for sound and audiovisual works
Art. XI.194. The author who transfers or assigns his right to rent on a sound or audiovisual work retains the right to fair remuneration under the rental.
This right cannot be waived by the author.
Section 8. - The publishing contract
Art. XI.195. The publishing contract must indicate the minimum number of copies forming the first draw.
However, this obligation does not apply to the contract providing a guaranteed minimum of copyright to the publisher.
Art. XI.196. § 1^er. The publisher must produce or produce copies of the work within the agreed time limit.
In the absence of a contract, this period will be determined in accordance with the honest uses of the profession.
If the publisher fails to fulfil its obligation within the time limits set out above without being able to justify a legitimate excuse, the author will be able to resume his rights granted, after a stay, by registered mail with acknowledgement of receipt, and remained without effect for six months.
§ 2. The publisher undertakes to pay, unless otherwise agreed, to the author a remuneration proportional to the revenues.
If the author has given the publisher the publishing rights under such conditions that, in view of the success of the work, the agreed lump-sum remuneration is manifestly disproportionate to the profit derived from the exploitation of the work, the publisher is obliged, at the request of the author, to make an amendment of the remuneration to grant the author a fair participation in profit. The author cannot anticipate the benefit of this right.
§ 3. The publisher may not assign its contract without the consent of the copyright holder, except in the event of a concomitant assignment of any or part of its undertaking.
Art. XI.197. Within three years after the expiration of the contract, the publisher may proceed with the flow, at the normal price, of the remaining copies in stock, unless the author prefers to redeem these copies at a price that, if not agreed, will be fixed by the court.
Art. XI.198. Notwithstanding any agreement to the contrary, the publisher shall send to the author, at least once a year, a statement of sales, revenues and transfers made according to each operating mode.
Except in the event of reissue, the publisher is exempted from this obligation if the work is not exploited, in any way, for five consecutive years.
Art. XI.199. Regardless of any other causes justifying the resolution of the publishing contract, the author may claim it when the publisher has proceeded to the total destruction of the copies.
In the event of a contract resolution, the author will have the right to purchase copies still in stock at a price that, in case of disagreement between the publisher and the author, will be determined by the court.
The fact for the author to claim the resolution of the contract will not affect the operating contracts validly entered into by the publisher with third parties, the author having against them a direct action in payment of the compensation, if any, agreed upon, returning him from that leader.
Art. XI.200. In the event of bankruptcy, reorganization or liquidation of the publisher's business, the author may immediately denounce the original contract, by registered mail with acknowledgement of receipt.
All copies, copies or reproductions that are the subject of copyright must, preferably, be offered for purchase to the author, at a price that, in the event of a disagreement between the curator and the author, will be determined by the judge seized, at the request of the most diligent party, the curator or the author duly called, and, if any, by the opinion of one or more experts.
The author loses his right of preference if he does not make known to the curator his will to make use of it within thirty days of receiving the offer. The offer and acceptance must be made, under penalty of nullity, by exploit of bailiff or by registered mail with acknowledgement of receipt. The author of the work may waive his right of preference, by exploit of bailiffs or by registered mail addressed to the curator.
When the author has been used in the procedure provided for in paragraph 2, the author may waive, on the same basis, the offer made to him, within fifteen days of the notification, by registered mail, by the certified copy expert(s) of the report.
The costs of expertise will be shared between the mass and the author.
Section 9. - Contract of representation
Art. XI.201. The representation contract must be concluded for a limited period of time or for a specified number of communications to the public.
The alienation or exclusive licence granted by an author for live performances cannot validly exceed three years; the interruption of representations over two consecutive years puts an end to it in full right.
The beneficiary of a representation contract may not assign the contract to a third party without the consent of the author, except in the event of a concomitant assignment of any or part of his business.
Art. XI.202. The recipient of the representation contract is required to communicate to the author or his successors the exact program of public representations or executions and to provide them with a justified statement of income.
If the author has authorized the public representation of a show living under such conditions as, in view of the success of the work, the agreed lump-sum remuneration is clearly disproportionate to the profit derived from the operation of the work, the beneficiary of the representation contract is required, at the request of the author, to make an amendment to the remuneration to grant the author a fair participation in the profit. The author cannot anticipate the benefit of this right.
Section 3. - Neighbouring rights
Section 1^re. - General provision
Art. XI.203. The provisions of this chapter shall not affect the rights of the author. None of them can be interpreted as a limit to the exercise of copyright.
The neighbouring rights recognized in this chapter are movable, volatile and communicable, in whole or in part, in accordance with the Civil Code rules. They may be subject to an alienation or a simple or exclusive licence.
Section 2. - Provisions relating to performers or performers
Art. XI.204. The performer or performer enjoys an inalienable moral right on his performance.
The overall waiver of the future exercise of this right is zero.
The performer or performer has the right to mention his name in accordance with the honest uses of the profession and the right to prohibit an inaccurate attribution.
Notwithstanding any renunciation, the artist-interpreter or executor retains the right to object to any distortion, mutilation or other modification of his performance or to any other breach of his performance, which affects his honour or reputation.
Art. XI.205. § 1^er. The artist-interpreter or performer alone has the right to reproduce his performance or to authorize its reproduction in any way and in any form, whether direct or indirect, provisional or permanent, in whole or in part.
This right includes the exclusive right to authorize the lease or loan.
He alone has the right to communicate his or her performance to the public through any process, including by making available to the public so that everyone can have access to the place and at the time he or she chooses individually.
The rights of the artist-interpreter or enforcer include, in particular, the exclusive right of distribution, which is only exhausted in the case of first sale or first transfer of ownership, in the European Union, of the reproduction of his performance by the artist-interpreter or executing or with his consent.
Variety artists and circus artists are also considered performers or performers. They are not complementary artists, recognized as such by the uses of the profession.
§ 2. It is presumed to be an artist-interpreter or performer, unless otherwise proved, anyone who appears as such on the performance, on a reproduction of the performance, or in relation to a communication to the public of the performance, by mentioning its name or a sigle to identify it.
§ 3. With respect to the artist-interpreter or performer, all contracts prove in writing.
The contractual provisions relating to the rights of the artist-interpreter or performer and their modes of operation are strictly interpreted. The transfer of the object that incorporates a fixation of the benefit does not take the right to exploit it.
The assignee is required to operate the benefit in accordance with the honest uses of the profession.
Notwithstanding any provision to the contrary, the assignment of rights relating to unknown forms of exploitation is null and void.
The assignment of property rights, relating to future benefits, is only valid for a limited period of time and provided that the types of benefits on which the assignment relates are determined.
§ 4. When benefits are performed by an artist-interpreter or performing in the performance of a work contract or status, property rights may be transferred to the employer provided that the assignment of rights is expressly provided and that the benefit enters the scope of the contract or status.
When benefits are performed by an artist-interpreter or performing in the execution of an order contract, property rights may be transferred to the person who has placed the order as long as the activity of the latter falls within the non-cultural or advertising industry, whether the benefit is intended for that activity and the assignment of rights is expressly provided.
In such cases, paragraph 3, paragraphs 3 to 5 does not apply.
Collective agreements can determine the scope and modalities of the transfer.
Art. XI.206. § 1^er. Unless otherwise agreed, the artist-interpreter or executor assigns to the producer of the audiovisual work the exclusive right of the audiovisual exploitation of his performance, including the rights necessary for such exploitation, such as the right to add subtitles or double the performance, without prejudice to the provisions set out in paragraphs 2 to 4.
§ 2. The artist-interpreter or performer who refuses to complete his participation in the realization of the audiovisual work or is unable to do so, will not be able to oppose the use of his participation for the completion of the work. It will have, for this participation, the quality of artist-interpreter or performer and will enjoy the rights that arise from it.
The moral right of performers or performers can only be exercised by them on the completed audiovisual work.
It is forbidden to destroy the matrix of this version.
§ 3. Except for the services performed for audiovisual achievements under the non-cultural industry or advertising, performers or performers are entitled to separate remuneration for each mode of operation.
§ 4. The amount of the remuneration is, unless otherwise stipulated, proportional to the revenues of the operation of the audiovisual work. In this case, the producer will send to the artist-interpreter or performer, at least once a year, a statement of revenues that he has collected according to each operating mode.
Art. XI.207. In the event of a live interpretation by a ensemble, the authorisation is given by soloists, conductors, stage directors, and, for other performers or performers, by the director of their troops.
Art. XI.208. The rights of the performer or performer expire fifty years after the date of the performance. However, if a fixation of the benefit is the subject of a lawful publication or communication to the public, the rights expire fifty years after the date of the first of these facts.
However,
- if a fixing of execution by a means other than a phonogram is subject to a lawful publication or a lawful communication to the public within that period, the rights expire fifty years from the date of the first of these facts;
- if a fixing of execution in a phonogram is subject to a lawful publication or a lawful communication to the public within that period, the rights expire seventy years from the date of the first of these facts.
The durations referred to in subparagraphs 1^er and 2 are calculated from 1^er January of the year following the generator fact.
After the death of the artist-interpreter or performer, the rights are exercised, by his or her heirs or legatees, unless the artist-interpreter or performer has assigned them to a specified person, taking into account the legal reserve that returns to the heirs.
Section 3. - Provisions common to producers of phonograms and first film fixations
Art. XI.209. § 1^er. Subject to Article XI.212 and without prejudice to the copyright of the author and the artist-interpreter or performer, the producer of phonograms or early film fixations has the sole right to reproduce his performance or to authorize reproduction in any way and in any form, whether direct or indirect, provisional or permanent, in whole or in part.
This right also includes the right to authorize rental or loan.
It also includes the exclusive right of distribution, which is only exhausted in the case of first sale or first transfer of ownership, in the European Union, of the reproduction of its benefit by the producer or with its consent.
The producer alone has the right to communicate to the public by any process the phonogram or the first fixation of the film, including by making available to the public so that everyone can have access to the place and at the time that they choose individually.
The rights of the producers of first film fixations expire fifty years after fixation. However, if the first fixation of the film is the subject of a publication or communication to the public licit during that period, the rights expire fifty years after the date of the first of these facts.
The rights of phonogram producers expire fifty years after fixation. However, if the phonogram was published lawfully during this period, the fees expire seven years after the date of the first lawful publication. In the absence of a lawful publication during the period referred to in the first sentence, and if the phonogram was subject to a lawful communication to the public during that period, the rights expire seventy years after the date of the first lawful communication to the public.
This duration is calculated from 1^er January of the year following the generator fact.
§ 2. Is presumed to be a producer of phonograms or early film fixations, unless otherwise proven, anyone who appears as such on the performance, on a reproduction of the performance, or in connection with a communication to the public of the performance, by mentioning its name or a sigle to identify it.
Art. XI. 210. § 1^er. If, fifty years after the phonogram has been the subject of a lawful publication, or, failing this publication, fifty years after it has been the subject of a lawful communication to the public, the producer of phonograms does not offer to the sale of copies of the phonogram in sufficient quantity or does not make it available to the public, by wire or wireless, in such a way that the members of the public can
The right to terminate the contract of assignment may be exercised if the producer, within one year of notification by the artist-interpreter or performing by registered mail of his intention to terminate the contract of assignment in accordance with paragraph 1^erdoes not complete the two operating acts referred to in paragraph 1^er.
The artist-interpreter or executor cannot give up this right of termination.
If a phonogram contains the fixation of the executions of several performers or performers, they may, in the absence of agreement between them terminate their contracts of assignment, each for their contribution.
If all contracts for the assignment of all performers are terminated pursuant to this paragraph, the rights of the producer of phonograms on the phonogram expire.
§ 2. When a contract of assignment gives the artist-interpreter or executing the right to claim a non-recurring remuneration, the artist-interpreter or executor has the right to obtain an additional annual remuneration from the producer of phonograms for each full year following directly the fiftieth year after the phonogram has been published lawfully, or, in the absence of this public publication, the fiftieth year
Performers or performers cannot waive this right to obtain additional annual remuneration.
§ 3. The total amount that a producer of phonograms must reserve for the payment of the additional annual remuneration referred to in paragraph 2 is 20% of the revenues that the producer of phonograms received, in the year preceding that of the payment of the said remuneration, in respect of the reproduction, distribution and provision of the relevant phonogram, beyond the fiftieth year after the phonogram has been published,
Phonogram producers are required to provide, upon request, to the management corporation designated under subsection 4, in the interest of performers or performers who are entitled to the additional annual remuneration referred to in paragraph 2 any information that may be necessary to ensure payment of that remuneration.
If the producer of phonograms fails to provide the information referred to in paragraph 2, the management corporation designated under subsection 4 may initiate the action for termination referred to in Article XI.336 in XVII.14 in order to obtain from the judge that it orders the provision of the information referred to in paragraph 2.
The requirement of professional secrecy referred to in section XI.281 applies to personnel of the management corporation designated under subsection 4, for all information they are aware of under this subsection.
§ 4. Depending on the conditions and terms and conditions that it sets, the King shall appoint a representative management company of performers or performers to ensure the perception and distribution of the remuneration referred to in paragraph 2.
§ 5. When an artist-interpreter or performer is entitled to recurring payments, no advance or deduction defined contractually may be cut off from the payments to which he benefits beyond the fiftieth year after the phonogram has been published lawfully or, in the absence of this publication, the fiftieth year after a lawful communication to the public.
Section 4. - Provision for the rental of phonograms and the first fixations of films
Art. XI.211. An artist-interpreter or executing person who transfers or cedesses his or her right to rent on a phonogram or on a first fixation of a film retains the right to fair remuneration for the rental.
This right cannot be waived and is incessant.
Section 5. - Common provisions relating to performers and producers
Art. XI.212. Without prejudice to the author's right when the performance of a performer or performer is lawfully reproduced or broadcasted, the performer or performer and the producer cannot oppose:
1° to its public execution, provided that this benefit is not used in a show and that a right of access to that place or a counterpart to benefit from that communication is not perceived to the public;
2° to its broadcasting.
Art. XI.213. The use of benefits, in accordance with Article XI.212, is entitled, irrespective of the place of fixation, to fair remuneration for the benefit of performers or performers and producers.
The King determines the amount of fair remuneration that may be differentiated according to the sectors concerned. It may determine the terms and conditions under which the performance of benefits must be carried out in order to be public in the sense of Article XI.212, 1°.
The King sets out the procedures for the collection, distribution and control of remuneration and the time it is due.
Compensation shall be paid by persons performing the acts provided for in Article XI.212 to the rights management companies referred to in Chapter 9 of this Title.
Pay debtors are required to a reasonable extent to provide information relevant to the collection and distribution of fees.
The King shall determine the terms and conditions under which such information and documents will be provided.
Art. XI.214. Subject to international conventions, the remuneration referred to in Article XI.213 shall be distributed by the rights management companies by half between performers and producers. This distribution key is imperative.
The share of the remuneration referred to in Article XI.213, to which the performers or performers are entitled, is incessant.
The remuneration rights provided for in Article XI.213 shall be the same as those provided for in Articles XI.208, paragraphs 1^er, 2 and 3 and XI.209, § 1^erparagraphs 5, 6 and 7.
Section 6. Provisions relating to broadcasting organizations
Art. XI.215. § 1^er. The broadcasting organization alone has the right to authorize:
(a) the simultaneous or delayed re-emission of its programming, including cable retransmission and satellite communication;
(b) the reproduction of its emissions by any process, whether direct or indirect, provisional or permanent, in whole or in part, including the distribution of its emission fixations;
(c) communication of its emissions made in a place accessible to the public through a right of entry;
(d) making available to the public the fixation of its emissions so that everyone can have access to the place and at the time that they choose individually.
The right of distribution referred to in paragraph 1 (b) shall be exhausted only in the case of a first sale or first transfer of ownership, in the European Union, of the fixing of its programming by the broadcasting organization or with its consent.
§ 2. Any person who appears as such on the performance, on a reproduction of the service, or in connection with a communication to the public of the service, is presumed to be a broadcasting organization, unless otherwise proved, because of the mention of the name or an acronym to identify the service.
Art. XI.216. The protection referred to in Article XI.215 remains for fifty years after the first broadcast of the program.
This duration is calculated from 1^er January of the year following the generator fact.
Section 7. - Provisions common to sections 1^re to 6
Art. XI.217. Articles XI.205, XI.209, XI.213 and XI.215 shall not apply where the acts referred to in these provisions are performed for the following purposes:
1° Quotations drawn from a performance, carried out for purposes of criticism, controversy, review, teaching, or in scientific work, in accordance with the honest uses of the profession and to the extent justified by the purpose pursued;
2e la fixation, la reproduction et la communication au public, pour un purpose d'information, de courts fragments des services des possesses de droits Neighbour visées dans les sections 2 à 6, à l'occasion de rapports des événements de l'actualité;
3° free and private execution carried out in the family circle;
4° the free execution carried out in the context of school activities, which may take place both in the educational establishment and outside the educational institution;
5° the reproduction of short fragments of a benefit when this reproduction is performed on any medium, for the purpose of illustrating the teaching or scientific research to the extent justified by the non-profit purpose pursued and does not prejudice the normal exploitation of the benefit;
6° the communication of benefits when this communication is carried out for the purpose of illustrating the teaching or scientific research by institutions recognized or officially organized for this purpose by the public authorities and provided that this communication is justified by the non-profit purpose pursued, is within the framework of the normal activities of the institution, is carried out only by means of closed transmission networks of the institution and does not affect the normal operation of the benefit;
7° the reproduction on any other than paper or similar support, of benefits, carried out in the family circle and reserved for it;
8° Provisional reproduction acts that are transient or accessories and constitute an integral and essential part of a technical process and whose sole purpose is to allow:
- a transmission in a network between third parties through an intermediary;
or
- licit use of a benefit,
and have no independent economic significance;
9° caricature, parody or pastiche, taking into account honest uses;
10° the free execution of a work during a public examination, when the object of the execution is not the work in itself but the appreciation of the interpreter or interpreters of the work for the issuance of a title of aptitude, diploma or title in a recognized educational institution;
11° the limited reproduction to a number of copies determined according to and justified by the purpose of preserving the cultural and scientific heritage, carried out by libraries accessible to the public, museums or archives, which do not seek any direct or indirect commercial or economic advantage, provided that this does not affect the normal exploitation of the benefit or cause unjustified prejudice to the legitimate interests of the holders of the neighbouring rights.
The materials thus produced remain the property of these institutions that prohibit commercial or lucrative use.
Neighbouring rights holders may have access to it, with strict respect for the preservation of the work and with fair remuneration for the work performed by these institutions;
12° the communication and provision to individuals, for private research or study purposes, of benefits that are not offered for sale or subject to conditions of licence, and that are part of collections of libraries accessible to the public, educational and scientific institutions, museums or archives that do not seek any direct or indirect commercial or economic advantage, through special terminals accessible to the premises of these institutions;
13° Ephemeral recordings of benefits by broadcasting organizations for their own programming and by their own means, including by means of persons acting on their behalf and under their responsibility;
14° the reproduction and communication to the public of benefits for persons with disabilities who are directly related to the disability in question and are of a non-commercial nature, to the extent required by the disability, provided that this does not affect the normal operation of the benefit or cause unjustified prejudice to the legitimate interests of the holders of the neighbouring rights;
15° reproduction and communication to the public to announce public exhibitions or sales of benefits, to the extent necessary to promote the event in question, excluding any other commercial use;
16° the reproduction of programs, by hospitals, penitentiaries, youth aid or assistance to persons with disabilities recognized, provided that these institutions do not pursue a profit purpose and that this reproduction is reserved for the exclusive use of the natural persons who reside there.
Art. XI.218. § 1^er. The performer or performer and the producer cannot prohibit the loan of phonograms or first fixations of films when this loan is organized for educational and cultural purposes by institutions recognized or officially organized for this purpose by the public authorities.
§ 2. The loan of phonograms and first film fixations can only take place two months after the first distribution to the public of the work.
After consultation with institutions and rights management companies, the King, may extend or shorten the time limit set out in the preceding paragraph for all phonograms and first film fixations.
§ 3. Institutions referred to in paragraph 1^er that the King designates, may import phonograms or the first fixations of films that have been the subject of a first lawful sale outside the European Union and that are not distributed to the public in the territory of the European Union, when this import is made for purposes of public loan organised for educational or cultural purposes and as long as it does not cover more than five copies of the phonogram or the first of the film.
Art. XI.219. The provisions of articles XI.217 and XI.218 are imperative.
Section 4. - Communication to the public via satellite and cable transmission
Section 1^re- Communication to the public via satellite
Art. XI.220. In accordance with the above chapters and the following clarifications, the protection of copyright and that of neighbouring rights also extend to satellite broadcasting.
Art. XI.221. The communication to the public via satellite takes place only in the Member State of the European Union in which, under the control and responsibility of the broadcasting organization, signals carrying programs are introduced into an uninterrupted channel of communication leading to the satellite and returning to the earth.
If it takes place in a State that is not a member of the European Union and that it does not provide protection to the same extent as the preceding chapters, it is nevertheless deemed to take place in the following Member State and the rights shall be exercised against the operator of the station or the broadcasting agency as the case may be:
- when the signals carrying programs are transmitted by satellite from a station for uplink located in the territory of a Member State, or
- where the broadcasting organization that has delegated the communication to the public, has its principal place of business in the territory of a Member State.
Art. XI.222. For the purposes of sections XI.220 and XI.221, the act of introducing, under the control and responsibility of the broadcasting organization, signals bearing programs intended to be captured by the public in an uninterrupted channel of communication leading to the satellite and returning to the earth shall be communicated to the public by satellite. When programming signals are broadcast in coded form, there is communication to the public via satellite provided that the program's decoding device is made available to the public by the broadcasting organization or with its consent.
Section 2. - Cable transmission
Art. XI.223. In accordance with the above chapters and under the following terms, the author and the holders of neighbouring rights have the exclusive right to authorize the cable transmission of their works or services.
Art. XI.224. § 1^er. The right of the author and neighbouring rights holders to authorize or prohibit cable retransmission may only be exercised by a rights management company.
§ 2. When the author or neighbouring rights holders have not entrusted the management of their rights to a rights management corporation, the corporation that manages rights in the same category is deemed to be responsible for managing their rights.
When several rights management companies manage rights in this category, the author or neighbouring rights holders may designate themselves the one that will be deemed to be responsible for the management of their rights. They have the same rights and obligations as a result of the contract between the cable carrier and the rights management company that the rights holders who have charged the company to defend their rights. They may assert their rights within three years of the cable transfer date of their work or performance.
§ 3. Paragraphs 1^erand 2 are not applicable to rights exercised by a broadcasting organization in respect of its own programs.
Art. XI.225. § 1^er. When an author or performer or performer has ceded his or her right to authorize or prohibit cable retransmission to an audiovisual work producer, he or she retains the right to obtain remuneration for cable retransmission.
§ 2. The right to pay for cable retransmission, as provided in paragraph 1^er, is inceivable and cannot be the subject of a waiver by the authors or artists- performers or performers. This provision is imperative.
§ 3. The management of the authors' right to compensation, as provided for in paragraph 1^er, can only be exercised by copyright management companies representing the authors.
Management of the rights of performers or performers to obtain compensation, as provided for in paragraph 1^er, can only be exercised by rights management companies representing artists- performers or performers.
§ 4. Without prejudice to the second paragraph, the broadcasting organizations that manage the right to authorize cable retransmission, as referred to in Article XI.223, in respect of their own programming, the management companies that manage the rights to authorize or prohibit cable retransmission, as referred to in Article XI.224, paragraph 1, and the management companies that manage the right to remuneration set out in paragraph 1 above, set out in paragraph 1 above.
After the advice of the consultation committee, the King determines the conditions to which this platform must meet. It can, on the basis of objective criteria, limit the composition and scope of the single platform, particularly with respect to certain categories of eligible persons.
Following the advice of the consultation committee, the King determines the effective date of the single platform.
§ 5. As long as the single platform provided for in paragraph 4 is not in place, the right to remuneration provided for in § 1^er may be claimed directly by the cable companies.
Art. XI.226. In order to inform third parties of the existence of existing cable retransmission contracts and the payment of copyright and related rights, the Regulatory Service shall establish a register of contracts authorizing cable retransmission. The King may determine the terms and conditions of this registry.
For this purpose, cable operators shall transmit to the Regulatory Service the necessary information within three months from the conclusion of the contract. The King may determine the terms and conditions for the information and how such information must be transmitted to the Regulatory Service.
Art. XI.227. Every cable licensee is required to inform the Regulatory Service referred to in Article XI.274 of the amounts corresponding to copyright and neighbouring rights to which it is obligated by this retransmission.
The King may determine the terms and conditions under which the amount of copyright and related rights must be communicated and detailed to the Regulatory Service under paragraph 1^er.
Art. XI.228. § 1^er. When the conclusion of an agreement authorizing cable retransmission is impossible, the parties may appeal jointly, either to the Regulatory Service referred to in Article XI.274 or to three mediators.
§ 2. The three mediators are designated according to the rules of Part VI of the Judicial Code applicable to the designation of arbitrators. They must present guarantees of independence and impartiality. They must assist in the conduct of negotiations and may make proposals after hearing the parties concerned. Proposals are notified by registered mail with acknowledgement of receipt.
§ 3. The parties are expected to accept the proposals addressed to them by the three mediators if, within three months of the notification, none of them object to it by means of a notification to the other parties in the same forms.
Section 5. - Private copy of works and benefits
Art. XI.229. Authors, performers or performers, publishers of literary works and works of graphic or plastic art and producers of phonograms and audiovisual works are entitled to remuneration for the private reproduction of their works and services, including in the cases referred to in articles XI.190, 9° and 17° and XI.217, 7° and 16°.
Compensation shall be paid by the manufacturer, importer or intra-community purchaser of manifestly used materials for the private reproduction of works and services on any medium other than on paper or similar support, or apparatus manifestly used for such reproduction during the circulation of these materials and devices in the national territory.
In accordance with the terms provided for in Article XI.232, the King determines which devices and supports are clearly used for the private reproduction of works and services on any medium other than paper or similar support.
Without prejudice to international conventions, remuneration is distributed in accordance with Article XI.234, by rights management companies, between authors, performers or performers, publishers of literary works and works of graphic or plastic art and producers.
According to the conditions and the terms and conditions that He sets, the King directs a representative company of all rights management companies to ensure the collection and distribution of remuneration.
When an author or performer or performer has granted his right to pay for private copying, he or she retains the right to obtain fair remuneration for private copying.
Art. XI.230. The rights management corporation designated by the King under this chapter may obtain the information necessary to carry out its mission in accordance with Article XI.281 and XV.113 to:
- of the Customs Administration and Access under section 320 of the General Act of 18 July 1977 on Customs and Access, replaced by the Act of 27 December 1993;
- of the T.V.A. Administration pursuant to article 93bis of the T.V.A. Code of 3 July 1969;
- and the National Social Security Office in accordance with the Act of 15 January 1990 on the institution and organization of a Social Security Bank.
Art. XI.231. Without prejudice to Article XI.281 and XV.113, the Designated Rights Management Corporation may, upon request, disclose information to Customs and T.V.A. administrations.
Without prejudice to Article XI.281 and XV.113, the Designated Rights Management Corporation may communicate and receive information:
- Control and Mediation of the SPF Economy;
- rights management companies carrying on similar activities abroad, subject to reciprocity.
Art. XI.232. The King determines, by categories of materials and technically similar devices that He defines, whether they are clearly used for the private reproduction of works and services on any medium other than paper or similar medium and sets out the modalities for the collection, distribution and control of remuneration and the time when it is due.
The King may determine, on a specific list, the categories of technically similar supports and devices that are not clearly used for the private reproduction of works and services on any medium other than paper or similar support and that are not subject to remuneration for private copying.
Computers or categories of computers such as the King has defined them may only be subject to remuneration or registered on the specific list referred to in paragraph 2 by a Royal Decree deliberated in the Council of Ministers.
At the same time as it determines the status of the devices and supports the King sets by royal decree deliberated in the Council of Ministers the remuneration referred to in Article XI.229.
This remuneration is established by category of equipment and technically similar supports.
A device that is clearly used for the private reproduction of works and benefits on any other than paper or similar medium and that permanently incorporates a support, is subject to only one remuneration.
In particular, it shall be taken into account when setting such remuneration for the application or not of the technical measures referred to in articles I.13, 7°, XI.291 and XV.69 to the works or benefits concerned.
The amount of such remuneration may be revised every three years.
If the conditions that justified the setting of the amount have been clearly and sustainably changed, this amount may be revised before the expiry of the three-year period.
The King, if he revises the amount endeaned for the three-year period, motivates his decision by changing the initial conditions.
The lack of use of technical measures may not prejudice the right to remuneration as defined in Article XI.229.
Art. XI.233. The remuneration referred to in Article XI.229 shall be refunded in the manner determined by the King:
1° to producers of sound and audiovisual works;
2° to broadcasting organizations;
3° to institutions officially recognized and subsidized by the public authorities for the purpose of maintaining sound or audio-visual documents. Reimbursement is granted only for materials intended for the preservation of sound and audiovisual documents and their on-site consultation;
4° to the blind, the visually impaired, the deaf and the hearing impaired, and to the recognized institutions created for these persons;
5° to recognized educational institutions, which use audio and audiovisual material for educational or scientific purposes;
6° to recognized hospital, penitentiary and youth aid institutions.
In addition, the King may determine by royal decree deliberated in the Council of Ministers, the categories of persons, physical or moral:
1° that benefit from a total or partial refund of the remuneration collected and impacted on the supports and devices they acquired;
2° for which the compensation payables referred to in Article XI.229 shall be exempted or refunded in whole or in part of it for the materials and apparatus acquired by such persons.
The reimbursement or exemption of the remuneration referred to in the preceding paragraph must be duly motivated:
1° the need to guarantee, without prejudice to creation, the most equal access for each of the new information and communication technologies, as long as the remuneration in question constitutes an obstacle to such access;
2° by the need to guarantee the acquisition of materials and devices by persons who obviously do not devote this material to the reproductions referred to in Article XI.229.
The King determines the conditions of reimbursement or exemption.
Art. XI.234. § 1^er. With respect to the remuneration referred to in Article XI.229, the King may determine the distribution key between the following categories of work:
(1) literary works;
(2) works of graphic or plastic art;
(3) sound works;
4) audiovisual works.
The portion of the remuneration referred to in Article XI.229, relating to sound works and audiovisual works, is divided by third parties between authors, performers or performers and producers.
Part of the remuneration referred to in Article XI.229, relating to literary works and works of plastic or graphic art, is equally distributed among authors and publishers.
Paragraphs 2 and 3 are imperative.
The portion of the remuneration referred to in Article XI.229, relating to sound works and audiovisual works, to which authors and performers are entitled, is incessant.
The portion of the remuneration referred to in Article XI.229, relating to literary works and works of plastic or graphic art to which the authors are entitled, is incessant.
§ 2. The Communities and the Federal State may decide to allocate thirty percent of the proceeds of the remuneration referred to in the preceding paragraph to the promotion of the creation of works, by agreement of cooperation under Article 92 bis, § 1^erthe special law of 8 August 1980 of institutional reforms.
Section 6. - Reproduction on paper or on a similar medium of works for a private purpose or for the purposes of illustration of teaching or scientific research
Art. XI.235. Authors and publishers are entitled to remuneration for reproduction on paper or on a similar basis of their works, including under the conditions provided for in articles XI.190, 5° and 6°, and XI.191, § 1^er1° and 2°.
Compensation shall be paid by the manufacturer, importer or intra-community purchaser of devices which are manifestly used for reproduction on paper or on a similar basis of works, when these devices are placed in circulation on national territory.
Under the terms provided for in Article XI.239, the King determines which devices are clearly used for reproduction on paper or on a similar medium of works.
The King may establish a list of devices that are not clearly used for reproduction on paper or on a similar basis of works and are not subject to remuneration for reprography.
Art. XI.236. In addition, a proportional remuneration, determined according to the number of reproductions carried out, is due by natural or legal persons who perform reproductions of works, or if any, at the discharge of the first, by those who hold an expensive or free reproduction device at the disposal of others.
Art. XI.237. The rights management corporation designated by the King under this chapter may obtain the information necessary to carry out its mission in accordance with Article XI.281 and XV.113 to:
- of the Customs Administration and Access under section 320 of the General Customs and Access Act of 18 July 1977, replaced by the Act of 27 December 1993;
- of the T.V.A. Administration pursuant to article 93bis of the T.V.A. Code of 3 July 1969;
- and the National Social Security Office in accordance with the Act of 15 January 1990 on the institution and organization of a Social Security Bank.
Art. XI.238. Without prejudice to Article XI.281 and XV.113, the Designated Rights Management Corporation may, upon request, disclose information to Customs and T.V.A. administrations.
Without prejudice to Article XI.281 and XV.113, the Designated Rights Management Corporation may communicate and receive information:
- Control and Mediation of the SPF Economy;
- rights management companies carrying on similar activities abroad, subject to reciprocity.
Art. XI.239. The King shall fix the remuneration referred to in Articles XI.235 and XI.236 by order deliberately in the Council of Ministers.
The remuneration referred to in Article XI.236 may be adjusted to the sectors concerned.
The King determines, by categories of technically similar apparatus that He defines, whether they are clearly used for the reproduction on paper or similar support of works.
The King may determine, on a specific list, the categories of technically similar apparatus that are not manifestly used for the reproduction on paper or similar support of works and that are not subject to the remuneration for reprography.
It sets out the modalities for the collection, distribution and control of such remuneration and the timing of such remuneration.
Without prejudice to international conventions, the remuneration referred to in articles XI.235 and XI.236 shall be equally attributed to the authors and publishers. This provision is imperative.
The share of remuneration referred to in articles XI.235 and XI.236 to which the authors are entitled is inceivable.
According to the conditions and the terms and conditions that He sets, the King directs a representative company of all rights management companies to ensure the collection and distribution of remuneration.
The amount of such remuneration may be revised every three years.
If the conditions that justified the setting of the amount have been clearly and sustainably changed, this amount may be revised before the expiry of the three-year period.
The King, if he revises the amount endeaned for the three-year period, motivates his decision by changing the initial conditions.
Section 7. - Reproduction and/or communication of works and benefits for the purposes of illustration of teaching or scientific research
Art. XI.240. The authors and publishers of works are entitled to compensation because of the reproduction and communication of the works under the conditions set out in articles XI.190, 7° and 8° and XI.191, § 1^erThree.
The authors of databases are entitled to compensation because of their communication under the conditions set out in Article XI.191, § 1^erFour.
Performers or performers, producers of phonograms and producers of early film fixations are entitled to compensation because of the reproduction and communication of their performances under the conditions set out in article XI.217, 5° and 6°.
Art. XI.241. The proportional remuneration, which is determined according to the acts of exploitation of the works and the benefits, is due by the natural or legal persons who carry out these acts of exploitation or, if any, to the discharge of the first by the educational or scientific research institutions that hold on an expensive or free basis the works and benefits available to others.
Art. XI.242. The remuneration referred to in Article XI.240 shall be determined by royal decree deliberated in the Council of Ministers.
The King sets out the procedures for the collection, distribution and control of remuneration and the time it is due.
Depending on the conditions and terms and conditions it sets, the King may charge one or more companies that, alone or together, are representative of all rights management companies, ensure the perception and distribution of remuneration.
The King may also determine the key to the distribution of remuneration, on the one hand, between the categories of entitled persons and, on the other, between the categories of works.
In this case, the distribution key is mandatory.
The portion of the remuneration referred to in Article XI.240, to which the authors and performers or performers are entitled, is incessant.
Section 8. - Provisions relating to public loan
Art. XI.243. § 1^er. In case of lending of literary works, databases, photographic works or scores of musical works under the conditions defined in Article XI.192, the author and the publisher are entitled to remuneration.
§ 2. In the event of a loan of sound or audiovisual works, under the conditions set out in articles XI.192 and XI.218, the author, the performer or performer and the producer are entitled to remuneration.
Art. XI.244. After consultation with the Communities, Institutions and Rights Management Corporations, the King determines the amount of remuneration referred to in Article XI.243.
The King may determine the amount of the remuneration referred to in Article XI.243, including by:
1st volume of the collection of the loan institution; and/or
2° number of loans per institution.
These remuneration are collected by rights management companies.
Depending on the conditions and terms and conditions it sets, the King may charge a representative company of all rights management companies to ensure the collection and distribution of pay for public loan.
After consultation with the Communities and, where appropriate, on their initiative, the King sets out for certain classes of establishments recognized or organized by the public authorities, an exemption or a lump-sum price per loan to establish the remuneration provided for in Article XI.243.
Art. XI.245. § 1^er. Subject to international conventions, the remuneration referred to in Article XI.243, § 1^er, is distributed between authors and publishers up to 70% for authors and 30% for publishers.
§ 2. Subject to international conventions, the remuneration referred to in Article XI.243, § 2, shall be divided, by third, between the authors, the performers or performers and the producers.
§ 3. Paragraphs 1 and 2 are imperative.
The share of compensation referred to in Article XI.243, § 1^er, to which the authors are entitled, is inceivable.
The share of compensation referred to in Article XI.243, § 2, to which the authors or performers or performers are entitled, is incessant.
Section 9. - Rights management companies
Art. XI.246. Any person who receives or distributes the rights recognized in this title on behalf of several holders of such rights shall be subject to the provisions of this chapter.
Art. XI.247. § 1^er. This management must be carried out by a company with a legal personality and limited liability, regularly incorporated in one of the countries of the European Union where it exercises lawfully an activity of a society of perception or distribution of these rights.
If the company is established in another Member State of the European Union, it must operate in Belgium through a branch established in Belgium.
Unless otherwise provided, the management companies established in another Member State of the European Union shall, exclusively with respect to their branches established in Belgium, be subject to all obligations arising from this title and to the control of the Supervisory Service.
Unless otherwise provided in this title and without prejudice to paragraph 3, the terms "management company" refer to both the management companies established in Belgium and those established in another Member State of the European Union with respect to their branches established in Belgium.
§ 2. The associates of management companies established in Belgium must be authors, performers or performers, producers of phonograms or first fixations of films, publishers or their rights, having entrusted the management of all or part of their rights to the management company concerned. Management companies established in Belgium can also be among the partners of other management companies.
Without prejudice to articles XI.229, paragraph 5, XI.239, paragraph 7, XI.242, paragraph 3, XI.244, paragraph 4, and XI.248, paragraph 1^erParagraph 1^er, a management company established in Belgium cannot refuse to admit as partners, individual beneficiaries.
The statutes of management companies established in Belgium give the right to persons referred to in paragraph 1^er, which they manage the rights to become their associates, on the basis of objective conditions established by the statutes applied in a non-discriminatory manner, and to be represented in the organs of society.
Art. XI.248. § 1^er. The management corporation has the obligation to manage the rights recognized in this title, when the licensee so requests and to the extent that it complies with the object and status of the corporation.
This management must be carried out in a fair and non-discriminatory manner.
§ 2. Management companies manage rights in the interest of eligible persons.
Management companies are structured and organized to minimize the risk that conflicts of interest between society and the rights of which they manage, or between the rights of the rights, do not adversely affect the interests of the rights-holders.
They develop rules relating to operations performed in the performance of their duties by staff, enforcement officers and representatives of the management company and in which they have a clear personal interest.
§ 3. The management company must separate, on the one hand, the heritage constituted by the rights collected and managed on behalf of the rights holders recognized by this title and, on the other, the own heritage constituted by the remuneration of management services or the income of its other activities or its own heritage.
The amounts collected and managed by management companies on behalf of the holders of rights recognized in this title and which have not yet been paid to eligible persons are paid, on behalf of the eligible persons, under a separate heading, on a special account opened in a credit institution registered in one of the lists referred to in sections 13 and 65 of the Act of 22 March 1993 relating to the status and control of credit institutions. This credit institution must first give up the principle of the uniqueness of accounts and the legal and conventional compensation between the various accounts of the management company.
The amounts referred to in paragraph 2 may only be subject to non-speccal investments by management companies.
§ 4. The rights management companies have a management structure, an administrative and accounting organization and an internal control tailored to their activities.
After consultation with the Accounting Standards Commission, the Institute of Business Reviewers and the Business Rights Management Corporations in the Consultation Committee established by Article XI.282, the King shall determine the minimum requirements for the accounting and internal control of management companies referred to in paragraph 1^er.
The Control Service may request at any time the necessary data relating to the management structure, administrative and accounting organization and internal control of a management company.
If the Supervisory Service finds that a management company has committed serious or repeated offences to the provisions of this title, its enforcement orders or the provisions of its statutes and regulations and that, on the basis of the data available to it, it has clear indications that these offences are a consequence of a management structure or an administrative organization not appropriate to its activities, it may make recommendations in this regard to the management society.
Within 3 months, the management company may decide whether or not to follow these recommendations. If it refuses to follow the recommendations, it must state the reasons for the recommendations within the same time limit to the Oversight Service.
If the Supervisory Service finds, after the management company's refusal to follow the recommendations, that it has not been remedied or terminated a serious or repeated offence to the provisions of this title, its enforcement orders or the provisions of its statutes or regulations and demonstrates that this is due to a management structure or an administrative organization not adapted to its activities, it may take the necessary measures as provided for in Articles XV.62/1,31,
§ 5. If there are close ties between the management company and other natural or legal persons, these links cannot hinder the proper exercise of individual control or on a consolidated basis of the management company.
By close ties, it is necessary to hear:
1° a situation in which there is a link of participation or
2° a situation in which companies are companies linked to the meaning of the corporate code of 7 May 1999;
3° a relationship of the same nature as under 1° and 2° above between a natural person and a legal person;
Notwithstanding paragraph 2, are presumed to create close links to the following situations: administrative bodies composed by a majority of the same persons, head office or operating office located at the same address and long-term and significant direct or indirect links in terms of administrative or financial assistance, logistics, personnel or infrastructure.
Art. XI.249. § 1^erThe rights management companies cannot establish their annual accounts in accordance with the shortened scheme set out in section 93 of the Corporations Code of 7 May 1999.
After consultation with the Accounting Standards Commission, the Institute of Business Reviewers and the Management of Rights Corporations in the Consultation Committee established by Article XI.282, the King completes and adapts the rules established under Article 4, paragraph 6, of the Act of 17 July 1975 relating to the accounting of enterprises and the rules laid down under Article 92 of the Corporations Code of 7 May 1999 that are required by law.
The King may differentiate the rules that he sets under paragraph 2 according to the rights concerned.
§ 2. Regardless of the legal form or size of the rights management company, directors or managers of management companies make a management report in which they report on their policy. This management report contains the elements set out in section 96 of the Corporations Code, as well as all data that this title should be included in the management report.
The first paragraph also applies to management companies established in another Member State of the European Union with respect to their branches established in Belgium. The management report is prepared by the person in Belgium who is responsible for the administration of the branch of a management company established in another Member State of the European Union.
§ 3. Without prejudice to sections 95, 96 and 119 of the Code of Societies, the management report of the management company includes the following information:
1° for each section of perception defined in a homogeneous manner:
(a) the amount of rights collected;
(b) the amount of direct charges related to these perceptions and the amount of indirect expenses of the management company charged under this heading;
(c) the amount of rights distributed among eligible persons, the amount of rights paid to eligible persons, and the amount of rights still to be allocated.
2° the remuneration that the entitled persons are required to pay to the management company for the management services provided by the rights management company;
3° the financial data on which the remuneration referred to in 2° is calculated;
4° the determination on the one hand of all the resources of the management society and on the other hand of the rights perceived, and the consistency of them with their respective use.
§ 4. The rights management companies shall communicate to the Supervisory Service, for each accounting exercise, within six months of the closing of the relevant fiscal year, the information referred to in § 3.
At the same time, the information referred to in paragraph 3, 1°, is also repeated on the management company's web page at a clearly readable location and with clear references to the main menu of the web page.
§ 5. After consultation with the Accounting Standards Commission, the Institute of Business Reviewers and the Business Rights Management Corporations in the Consultation Committee established by Article XI.282, the King may establish terms and conditions under which the data referred to in paragraph 3 are presented.
Art. XI.250. The functions of manager, administrator, person in charge of the management of the Belgian branch of a foreign corporation or director may not be exercised in fact and/or legally within a management company, or represent companies carrying on such functions, persons who are subject to a judicial ban referred to in Articles 1^er 3 bis, §§ 1^er and 3, and 3ter of Royal Decree No. 22 of 24 October 1934 concerning the judicial prohibition of certain convicts and bankrupts, to perform certain functions, professions or activities.
The functions listed in paragraph 1^er may no longer be exercised:
1° by persons who have been sentenced to a sentence of less than three months' imprisonment or a fine for an offence provided for in Royal Decree No. 22 of 24 October 1934 above;
2° by persons who have been convicted for criminal offences:
(a) Articles 148 and 149 of the Act of 6 April 1995 relating to the status and control of investment enterprises;
(b) Articles 104 and 105 of the Act of 22 March 1993 relating to the status and control of credit institutions;
(c) Articles 38, paragraph 4, and 42 to 45 of Royal Decree No. 185 of 9 July 1935 on the control of banks and the regime of securities and values emissions;
(d) Articles 31 to 35 of the provisions relating to private savings funds, coordinated on 23 June 1962;
(e) Sections 13-16 of the Public Savings Calls Act of 10 June 1964;
(f) Articles 110 to 112ter title V of Book I of the Commercial Code or articles 75, 76, 78, 150, 175, 176, 213 and 214 of the Act of 4 December 1990 on financial transactions and financial markets;
(g) in article 4 of Royal Decree No. 41 of 15 December 1934 protecting savings through the regulation of the temperament sale of batch values;
(h) Articles 18 to 23 of Royal Decree No. 43 of 15 December 1934 concerning the control of capitalization companies;
(i) sections 200 to 209 of the Commercial Corporations Acts, coordinated on 30 November 1935;
(j) sections 67 to 72 of Royal Decree No. 225 of 7 January 1936 regulating mortgages and organizing the control of mortgage companies or section 34 of the Mortgage Credit Act of 4 August 1992;
(k) Articles 4 and 5 of Royal Decree No. 71 of 30 November 1939 concerning the bonding of securities and the demarcation of securities and goods and goods;
(l) Article 31 of Royal Decree No. 72 of 30 November 1939 regulating the exchanges and futures markets of goods and commodities, the profession of brokers and intermediaries dealing with these markets and the regime of the exception of play;
(m) Article 29 of the Act of 9 July 1957 regulating temperament sales and their financing or sections 101 and 102 of the Consumer Credit Act of 12 June 1991;
(n) Article 11 of Royal Decree No. 64 of 10 November 1967 organizing the status of portfolio corporations;
(o) sections 53 to 57 of the Act of 9 July 1975 on the control of insurance companies;
(p) to articles 11, 15, § 4, and 18 of the Act of 2 March 1989 on the advertisement of important participations in publicly traded companies and regulating public tenders;
(q) in section 139 of the Act of 25 June 1992 on the land insurance contract;
(r) Article XI.293, XI.303 and XI.304;
3° by persons who have been convicted by a foreign jurisdiction for one of the offences specified in 1° and 2°; Article 2 of the above-mentioned Royal Decree No. 22 of 24 October 1934 is applicable in these cases.
The King may adapt the provisions of this article to align them with the laws that amend the texts listed therein.
Art. XI.251. Persons who are responsible for the management or administration of a rights management corporation are subject to the provisions of Articles 527 and 528 of the Code of Societies, on the understanding that the violation of Chapter 9 of this title and its enforcement orders is assimilated to the violation of the Code of Societies.
Art. XI.252. § 1^er. Apart from the cases in which they are or are to be fixed by or under the law, the rights management companies shall stop the pricing rules, the rules of perception and the rules of distribution for all modes of operation for which they manage the rights of the entitled persons. If management companies apply applicable fee increases where the user does not declare works or benefits protected within the time required or when the user does not provide the information required for the collection or distribution of the rights, they resume the rules relating to these increases in their pricing or collection rules.
Management companies still have an updated and coordinated version of their tariff, collection and distribution rules. The updated and coordinated version of their pricing and collection rules, as well as the remuneration charged by the management company to its management services, as a separate and operationally disaggregated data, are published on the management company's web page at a clearly readable location and with clear references to the main menu of the internet page, within one month of their latest update.
A person entitled to manage his or her rights to a management corporation is entitled to obtain within three weeks of his or her application a copy of the updated and coordinated version of the rules for the pricing, collection and distribution of that management company.
§ 2. Management companies take the measures to distribute the rights they receive within 24 months of their perception. The management report indicates the rights that have not been allocated within the twenty-four-month period from the perception of the rights, as well as the reasons for this lack of distribution.
§ 3. Management companies ensure that direct and indirect charges, in a given fiscal year, related to the management services that they charge on behalf of eligible persons, are consistent with the expenses that would be borne by a normally prudent and diligent management company and are less than fifteen percent of the average of the fees collected in the last three fiscal years. The King can adapt this percentage and differentiate it on the basis of objective and non-discriminatory criteria.
In the event of exceedance of the ceiling provided for in paragraph 1^er, this exceedance is fully motivated, accurate and detailed in the management report referred to in Article XI.257, § 2.
Art. XI.253. § 1^er. After consultation with the rights management companies, organizations representing the debtors of rights and organizations representing consumers sitting in the consultation committee established by Article XI.282, the King sets out:
1° the minimum information to be contained in the documents relating to the collection of rights that are made to the public by management companies, without prejudice to other legal provisions;
2° the minimum information that must contain invoices from management companies without prejudice to other legal provisions.
The King may differentiate the minimum information referred to in paragraph 1^er, 1° and 2° depending on the rights concerned.
§ 2. After consultation with the rights management companies, organizations representing the debtors of rights and organizations representing the consumers sitting in the consultation committee established by Article XI.282 and without prejudice to the exclusive right of the authors and holders of neighbouring rights, the King may, by order deliberately in the Council of Ministers, establish, taking into account the different categories of works and different modes of operation, the modalities for the administrative simplification of the perception of rights managed by
Under paragraph 1^er, the King is empowered to provide for any administrative simplification measures, such as the establishment of a single platform or the establishment of a single invoice.
Administrative simplification measures can be planned for a single operating mode or for several operating modes. Management companies that manage rights relating to these modes of operation shall implement the administrative simplification measures established by the King under this section.
From 1^er January 2015, management companies that manage copyrights and neighbouring rights relating to the public execution of phonograms and films, provide for a single platform for the collection of the above rights, provided that phonograms and films are not used for a representation and that no access or counterpart rights are required to be able to attend their execution. The King may change the date provided for in the previous sentence.
§ 3. In order to ensure their indemnity, the King may determine the applicable fee increases that are applied by management companies when the user does not declare the use of protected works or benefits within the time required or when he does not provide the information required for the collection or distribution of rights.
Art. XI.254. After consultation with the Accounting Standards Commission, the Institute of Business Reviewers and the Business Rights Management Corporations in the Consultation Committee established by Article XI.282 and without prejudice to other legal provisions, the King may set out the minimum information to be contained in the documents relating to the management of rights that are brought to the attention or used in respect of persons entitled by management companies in a manner that is clear to provide to persons who have the right to
The King may differentiate the minimum information referred to in paragraph 1^er according to the rights concerned.
Art. XI.255. § 1^er. Notwithstanding any provision to the contrary, the statutes, regulations or contracts of the companies may not prevent a person entitled to entrust the management of the rights of one or more categories of works or benefits of his or her repertoire to another corporation of his or her choice, or to ensure the management of the rights of another company of his or her own choosing.
As long as the person entitled to notify a notice of six months prior to the end of the accounting year, unless a shorter notice period is provided in the contract with the person entitled, the withdrawal of duties will take effect on the first day of the next fiscal year. When the notice of withdrawal is notified less than six months before the end of the fiscal year, or without meeting the time limit set out in the contract with the qualifying party when the person is less than six months, it will only take effect on the first day of the subsequent fiscal year.
The withdrawal of rights takes place without prejudice to the legal acts previously performed by society.
§ 2. The person who has a legitimate interest has the right to consult on-site or in writing the entire directory that management companies manage. If a person with a legitimate interest sends a written request to the management company in order to ascertain the ownership of a certain work, the company must provide the applicant with a full and written response within three weeks of receiving the request.
Management companies shall transmit to the Supervisory Service at the end of each accounting year an updated list with the name of all persons entitled to whom they have contracted the management of their rights, with the exception of those entitled to whom the rights are managed pursuant to contracts with other management companies established in Belgium or abroad.
Art. XI.256. § 1^er. Rights management companies may not direct or indirect credit or loans. They may no longer be a direct or indirect guarantor of commitments made by a third party.
§ 2. They may only grant advances if each of the following conditions is met:
- they are granted on the basis of non-discriminatory rules. These rules are an essential element of the rules of distribution of the management company;
- the award of advances does not compromise the result of the final distribution.
Art. XI.257. § 1^er. Without prejudice to Article XI.234, § 2, only the general assembly of the management society established in Belgium, deciding by a two-thirds majority of the associates present or represented, subject to more restrictive statutory provisions, may decide that not more than 10% of the rights collected may be affected by the management society for social, cultural or educational purposes. The General Assembly may also establish a general framework or general guidelines for the allocation of these sums.
The management of rights for social, cultural or educational purposes is carried out by the management society itself.
Management companies established in Belgium that affect in accordance with paragraph 1^er a portion of the rights collected for social, cultural or educational purposes must be separated from the accounts to reflect the resources allocated for these purposes and their effective use.
The allocation and use of rights by the rights management society for social, cultural or educational purposes is the subject of an annual report of the board of directors in which the allocation and use of these rights are indicated. This report is submitted to the General Assembly and provided for information to the Supervisory Service.
§ 2. Without prejudice to Article XI.234, § 2, and to the more restrictive legal provisions of the Member State in which they are established, the management societies established in another Member State of the European Union may decide that not more than 10% of the rights collected in Belgium may be affected for social, cultural or educational purposes.
The management of rights for social, cultural or educational purposes is carried out by the management society itself.
Management companies established in another Member State of the European Union that affect in accordance with paragraph 1^er a portion of the rights collected for social, cultural or educational purposes must be separated from the accounts to reflect the resources allocated for these purposes and their effective use.
The allocation and use of rights by the rights management society for social, cultural or educational purposes is reported annually by the management or administration body in which the allocation and use of these rights are indicated. This report is submitted to the General Assembly and provided for information to the Control Service.
Art. XI.258. § 1^er. Law holders and users of protected works and benefits have the right to file a complaint directly with management companies against individual acts of copyright and related rights management.
§ 2. In order to guarantee the right referred to in paragraph 1^er, rights management companies provide the rights holders and users of protected works and services with effective and timely complaints processing procedures.
§ 3. The management company reacts as quickly as possible to the complaint and no later than one month from the date of its introduction and makes every effort to find clear, relevant and satisfactory answers. For exceptional reasons, the time limit for processing the complaint may be extended for up to one additional month.
The answer is in writing or on a sustainable medium. When the management company responds that the claim is in whole or in part unfounded, it motivates its response.
Art. XI.259. § 1^er. Companies operating under section XI.246 that intend to operate in Belgium must be authorized by the Minister before commencing their activities.
§ 2. Authorization is granted to companies that meet the conditions set out in Articles XI.247 to XI.250, XI.252, XI.255, XI.256, XI.257 and XI.258.
The conditions for granting the authorization for a management company incorporated in another EU country shall not duplicate the requirements and controls equivalent or substantially comparable due to their purpose, to which the management company in that country is already subject.
§ 3. Any request for authorization is sent to the Minister by registered mail.
The King determines the information and documents that must accompany the request for authorization.
Within two months of the application, the Minister or his or her delegate shall provide the applicant with an acknowledgement of receipt if the file is complete. Otherwise, he informs the complainant that the file is not complete by indicating the missing documents or information. The Minister or his delegate shall issue the acknowledgement of receipt for the complete record within two months of receipt of the missing documents or information.
The Minister shall decide within three months of the notification indicating that the record is complete. If, within this period, the applicant shall attach additional information or documents to the applicant's request, the three-month period shall be extended by two months. The decision shall be notified to the applicant within fifteen days by a recommended consignment.
The authorization is published within 30 days to the Belgian Monitor.
When the refusal of the authorization is considered, the Minister or the person designated for this purpose shall notify, in advance, his grievances to the management company concerned by registered mail with acknowledgement of receipt. It shall inform the management corporation that, as of the date of such notification, it shall have a period of two months to consult the record that has been constituted, be heard by the Minister or the person designated for that purpose, and make its means. This two-month period suspends the three-month period referred to in paragraph 4. The decision is notified within fifteen days by registered mail.
Art. XI.260. § 1^er. The control of the financial situation, annual accounts and regularity in the management companies established in Belgium with respect to this title, its enforcement orders, the regulations and distribution rules, the transactions recorded in the annual accounts and the consolidated annual accounts, is entrusted to one or more commissioners selected from the Institute of Business Reviewers, regardless of the size of the management company.
All provisions of the Code of Societies relating to the commissioners, their mandate, their duties and competencies, the terms and conditions of designation and resignation shall apply to the commissioners referred to in paragraph 1^er.
§ 2. The control within the management companies established in another Member State of the European Union with respect to their branches established in Belgium, the financial situation, the annual accounts and the regularity vis-à-vis this title, its enforcement orders, the statutes and the rules of distribution, and the transactions recorded in the annual accounts, is entrusted to one or more revisors selected from among the members of the Institute of Revisors
Art. XI.261. The Supervisory Service may at any time ask the Commissioner or Reviewer to a Management Corporation for evidence that the Commissioner or Reviewer is not subject to disciplinary action.
The Commissioner or Reviewer who has been subject to a disciplinary penalty shall inform the Supervisor Service and the management company concerned of this disciplinary measure within five working days of the significance of this measure by the Institute of Business Reviewers
Art. XI.262. In the event of the resignation of the Commissioner or the Registrar in the management company, the Supervisor shall notify the Supervisor within five working days of the notification of the resignation.
Within five business days after the revocation by the management company of the terms of reference of Commissioner or Reviewer carried out in accordance with the provisions of the Corporations Code, the management company shall notify the Supervisory Service of this revocation.
Art. XI.263. § 1^er. Without prejudice to the missions entrusted to the Commissioner or reviser by or under other legal provisions, the Commissioner's mission or designated reviewer to a management corporation consists of:
1° to ensure that the management company has adopted the appropriate administrative and accounting and internal control measures to respect this title and its enforcement orders. This mission is the subject of a special report each year to the Board of Directors, provided for information to the Supervisory Service;
2° in the context of their mission to the rights management company or a revisoral mission to a natural or legal person with whom the management company has close ties, within the meaning of Article XI.248, § 5, paragraph 2, make an initiative to the directors or managers of the management society as soon as they find:
(a) decisions, facts or developments that have a significant influence or influence on the situation of the rights management society from a financial perspective or from the perspective of its administrative and accounting organization or internal control;
(b) decisions or facts that may constitute an infringement of the Corporations Code, the accounting legislation, the statutes of the corporation, the provisions of this title and its enforcement orders;
(c) other decisions or facts that are likely to result in a statement with reservation, negative opinion, or a statement of forbearance.
A copy of the reports provided for in the previous paragraph, under 1° and 2°, is communicated by the Commissioner simultaneously to the Supervisory Service. The Supervisory Service shall not take any action in relation to the data contained in these reports for a period of fifteen days from the date of the communication of this report in order to allow the rights management company to transmit its comments to the Commissioner or Reviewer and the Supervisory Service.
§ 2. No civil, criminal or disciplinary action may be brought or any professional sanction imposed against the commissioners or reviewers who have made good faith an information referred to in paragraph 1^erParagraph 1^erTwo.
Commissioners and reviewers are dismissed from their professional secrecy with respect to the Minister and the Supervisory Service when they find a breach of the Corporations Code, accounting legislation, the corporation's statutes, the provisions of this chapter or its enforcement orders.
§ 3. The Commissioner may request information relating to the physical or legal persons with whom the management company has close links within the meaning of Article XI.248, § 5, paragraph 2.
Art. XI.264. § 1^er. The funds raised which, in a certain way, cannot be allocated are distributed among the beneficiaries of the category concerned by the management companies established in Belgium, in accordance with the terms approved by a two-thirds majority in the general assembly. The King can define the notion of right-handed persons of the category concerned.
In the absence of such a majority, a new general assembly specially summoned to this effect statue by a simple majority.
Expenses of the management corporation may not be charged against the funds referred to in paragraph 1^er discriminated against other categories of rights managed by the management society.
The King shall determine the conditions under which, pursuant to paragraph 3, the expenses of the management corporation are charged against the funds referred to in paragraph 1^er.
The Commissioner shall prepare annually a special report on:
1° the qualification by the management company of amounts as a certain fund cannot be attributed;
2° the use of these funds by the management company, and
3° the charge on these funds.
§ 2. The funds that are collected in Belgium by management companies established in another Member State of the European Union and which, in a certain way, cannot be allocated shall be distributed among the beneficiaries of the category concerned by the management companies established in another Member State of the European Union. The King can define the notion of right-handed persons of the category concerned.
Expenses of the management corporation may not be charged against the funds referred to in paragraph 1^er discriminated against other categories of rights managed by the management society.
The King shall determine the conditions under which, pursuant to paragraph 3, the expenses of the management corporation are charged against the funds referred to in paragraph 1^er.
Each year, the reviewer prepares a special report on:
1° the qualification by the management company of amounts as a certain fund cannot be attributed;
2° the use of these funds by the management company, and
3° the charge on these funds.
Art. XI.265. Without prejudice to the specific derogatory provisions, shares in payment of fees collected by management companies are prescribed by ten years from the date of their perception. This period is suspended from the date of their perception until the date of their distribution.
Art. XI.266. Without prejudice to any information that must be submitted under the laws and statutes, any partner or agent may obtain, within one month of the day of the application, a copy of the documents for the past three years, and relating to:
1° to the annual accounts approved by the General Assembly and has the financial structure of the corporation;
2° to the updated list of directors;
3° to the reports made to the assembly by the board of directors and by the registrar;
4° to the text and statement of the reasons for the resolutions proposed to the General Assembly and any information relating to candidates for the Board of Directors;
5° to the overall amount, certified by the auditor-revisor, compensation, lump-sum expenses and benefits of any kind, paid to directors;
6° to the company's updated rates;
7° to the destination of the funds which, in accordance with Articles XI.178, § 3, and XI.264, had to be redistributed.
Art. XI.267. Companies have the ability, within their statutory competence, to enter into general contracts relating to the exploitation of copyrights and neighbouring rights.
Art. XI.268. Societies have the right to legalize for the defence of the rights of which they have statutory responsibility.
Art. XI.269. In addition to the records of officers or judicial police officers, the evidence of any representation, execution, reproduction or exploitation, as well as that of any inaccurate declaration concerning the works represented, executed or reproduced or relating to the revenues, may result from the findings of a judicial officer, or until evidence to the contrary of those of an officer designated by management companies, approved by the Minister
Art. XI.270. Notwithstanding any provision to the contrary, rights management companies shall communicate to the Supervisory Service at least sixty days before their examination by the competent body, the draft amendments to the statutes and the rules for pricing, collection or distribution of rights.
The Supervisory Service may require that the comments it makes regarding these projects be brought to the attention of the competent body of the company. These observations and responses must be included in the minutes of the competent body.
Art. XI.271. § 1^er. The management companies established in Belgium shall transmit to the Supervisory Service a copy of the accounting statement issued each semester to the commissioners in accordance with Article 137, § 2, paragraph 3 of the Code of Societies.
The management companies established in another Member State of the European Union shall transmit to the Supervisory Service at least every semester a statement of account for the activities of their branches established in Belgium and prepared in accordance with the balance sheet and results account.
§ 2. Management companies provide the Supervisory Service once a year with a coordinated and up-to-date version of their tariff, collection and distribution rules.
Art. XI.272. § 1^er. Rights management companies and users of protected works and benefits lead in good faith to negotiations for the granting of rights licences, the collection and pricing of rights. Negotiations in good faith include the transmission of all necessary information on the respective services of management companies and users.
§ 2. Without prejudice to the measures provided under Articles XI.175 to XI.178, XI.213, XI.229 to XI.245, users provide management companies with information on the use of protected works and benefits for which management companies manage the rights that are necessary for the pricing, collection and distribution of rights.
The King may determine the information necessary for the collection and distribution of the rights that users must communicate to management companies and the manner in which such information is communicated. In particular, it may differentiate this information and the terms and conditions according to the nature of the use such as the professional nature or not of it.
Art. XI.273. The rights licensing contracts entered into by rights management companies and users of protected works and benefits provide objective and non-discriminatory criteria in particular with respect to agreed tariffs.
Section 10. - Transparency of copyright and neighbouring rights
Section 1^er. - Regulation of copyright and neighbouring rights
Art. XI.274. It is established within the SPF Economie a Regulatory Service of copyright and neighbouring rights, below referred to as "Regulation Service".
Art. XI.275. § 1^er. Under its oversight missions, the Regulatory Service has exclusive jurisdiction to ensure that the rules of collection, pricing and distribution set by the rights management companies referred to in chapter 9 are fair and non-discriminatory.
An application may be filed with the Regulatory Service only by any interested person, by an authorized rights management company or a professional or interprofessional group with civil personality.
§ 2. Implementation of its monitoring missions referred to in paragraph 1^er, the Regulatory Service may:
1 to decide that the rules referred to in paragraph 1^er are fair and non-discriminatory;
2° send to the management company a warning referred to in Article XV.31/2 of this Code;
3° after sending a warning as provided for in 2°, refer the Court of Appeal of Brussels in accordance with Article XI. 340, in order to obtain a decision on the fair and non-discriminatory nature of the rules concerned;
If the regulator decides not to send a warning to the management company, the Regulatory Service shall inform the applicant(s) of that decision within the time and in the form referred to in paragraph 3.
The absence of decisions made by the Regulatory Service within the time frame is expected to constitute a decision that may be appealed within the meaning of Article XI.341.
§ 3. The Regulatory Service shall decide by reason of decision in the cases referred to in paragraph 2, after hearing the parties concerned, within two months after receiving all the information.
It makes its decisions taking into account, inter alia:
1° of the provisions of this title and titles 6 and 7;
2° of Belgium's international and European obligations regarding copyright and neighbouring rights;
3° of the value of the use of protected works or benefits in view of the exclusive character of the law.
It may conduct or conduct any relevant investigations and, where necessary, appoint experts and hear witnesses.
The Regulatory Service shall notify the parties and make them public within 15 days of their adoption.
They are published in paper and electronic form.
Art. XI.276. Under its advisory missions, the Regulatory Service may:
1° give motivated opinions regarding the valorization of copyright and neighbouring rights;
2° of initiative or at the request of the Minister or other services of the SPF Economy, conduct research and studies on the value of copyright and neighbouring rights, including market analysis;
3° transmit to the other services of the SPF Economie, at their request, information useful to the establishment of the enforcement orders of the provisions of this title.
Art. XI. 277. § 1^er. As part of its mediation missions, the Regulatory Service shall hear mediation requests relating to disputes relating to the application of this title and titles 6 and 7, with the exception of Article XI.293.
§ 2. In carrying out its mediation missions, the Regulatory Service is responsible for:
1° to accompany, hear and advise the parties in order to reach an amicable settlement;
2° in case an amicable settlement cannot be found, make a recommendation to the parties;
3° issue, on its own initiative or at the request of the Minister, notices in the course of his or her missions.
Mediation requests are mutually agreed upon by the parties involved.
§ 3. When an application for mediation in respect of a dispute in respect of copyright and neighbouring rights has been declared admissible by the Regulatory Service, the limitation periods of common law are suspended during the mediation proceedings relating to this dispute, until one of the parties or the Regulatory Service expresses the willingness to terminate the mediation procedure, with a maximum period of six months' suspension.
The Regulatory Service shall ensure the confidentiality of the information that the parties disclose in a mediation proceeding relating to a dispute referred to in paragraph 1^er. This data cannot be used in any other way or for any other purpose, except for their anonymous treatment for the annual report referred to in Article XI.288.
The amicable settlement of a dispute in respect of copyright and neighbouring rights obtained by the Regulatory Service may be submitted by the parties or by one of them, for approval, to the competent judge, in accordance with Articles 1025 to 1034 of the Judicial Code. The decision to register is outside the effect of a judgment within the meaning of Article 1043 of the Judicial Code.
Art. XI.278. § 1. In the performance of their duties, members of the Regulatory Service act independently and neutrally and may not receive instructions or orders from persons.
§ 2. The King sets out by decree deliberately in the Council of Ministers the administrative and financial status of the members of the Regulatory Service. The mandate of the members of the Regulatory Service is five years. Their mandate is renewable.
§ 3. The King sets out the additional rules of organization, operation, composition and procedure that apply to the Regulatory Service for the various missions referred to in Articles XI.275 to XI.277.
It also sets out the incompatibility regime applicable to the members of the Regulatory Service, in particular those responsible for a mediation mission referred to in Article XI.277, to ensure their independence and functional autonomy.
Section 2. - Rights Management Corporations Control Service
Art. XI.279. § 1^er. Without prejudice to Article XI.275, the Supervisory Service shall ensure the application of this title and its enforcement orders by the rights management companies and the application of their statutes and rules of pricing, perception and distribution.
§ 2. Without prejudice to the powers of judicial police officers, the officers of the Supervisory Service, designated for this purpose by the Minister, are also competent to investigate and determine the offences referred to in section XV.112.
Art. XI.280. The rights management companies must retain all data relating to the management of rights either at the head office of the Belgian companies or at the Belgian branch of the companies established in another Member State of the European Union or at any other place previously approved by the Minister or the agent commissioned for this purpose.
In the case of companies established in another Member State of the European Union, the obligation referred to in the preceding paragraph concerns the documents relating to the management of rights generated in Belgium and the rights of the legal persons established or resident in Belgium.
Without prejudice to other legal provisions that require a longer period of time, the time limit for the documents referred to in paragraph 1^er and 2 shall be retained for ten years from the apportionment of the amounts to which they relate.
Art. XI.281. Officers of management companies and any other persons called to participate in the collection of remuneration due under Chapters 5 to 9 shall be held in professional secrecy for all information they are aware of in or during the performance of their duties.
Art. XI.282. § 1^er. A committee is established with the SPF Economy to:
1° organize the consultation for the development of the enforcement measures of Chapter 9;
2° organize a dialogue between the media interested in the audiovisual sector on the application of the provisions of title 5, relating to audiovisual works.
§ 2. This committee that meets at least once a year is composed of representatives:
1° of management companies authorized to operate in Belgian territory;
2° organizations representing the authors, performers or performers, producers of audiovisual works or broadcasting organizations;
3° of organizations representing debtors of rights, designated by the Minister;
4° of organizations representing consumers, designated by the Minister;
5° of the Institute of Business Reviewers;
6° of the Accounting Standards Commission.
§ 3. Members of the consultation committee designated by the Minister as representatives of authors, performers or performers, producers, broadcasting organizations and users of audiovisual works may:
1° agree on the application of the provisions of title 5, relating to audiovisual works;
2° conclude, according to the procedure defined by the King, collective agreements relating to the exploitation of audiovisual works.
Collective agreements referred to in 2°, may be made mandatory by royal decree in respect of third parties. The Minister may refuse to propose to the King to make a collective agreement compulsory on the grounds that it contains clearly illegal or contrary to the general interest. The Panel shall disclose the reasons to the members referred to in paragraph 1^er.
The Consultation Committee composed of the members designated by the Minister as representatives of the authors, performers or performers, producers, broadcasting organizations and users of audiovisual works shall give notice to the Minister within six months of the entry into force of this provision, and thereafter every two years, on the application of the provisions of Title 5, relating to audiovisual works, in particular Articles XI. 182, XI.183 and XI. 206.
§ 4. The King determines the composition, terms and conditions of appointment of its members and the organization and operation of the committee.
The Minister shall designate the members of the consultation committee representing the authors, performers or performers, producers, broadcasting organizations and users of audiovisual works, authorized to negotiate the collective agreements referred to in paragraph 3.
Art. XI.283. The provisions of Chapter 9 and the second section of this chapter will be assessed by the Agency in the fourth year after the effective date of the Act of 10 December 2009 amending, with respect to the status and control of rights management companies, the Copyright and Rights Act of 30 June 1994.
The report of this evaluation is forwarded to the House of Representatives by the Minister.
Section 3. - Economic analysis of copyright and neighbouring rights
Art. XI.284. In order to assess the importance of copyright and neighbouring rights for the entire economy or for certain economic sectors, the SPF Economy shall, at the request of the Minister or House of Representatives, undertake the following tasks:
1° Collect, process and analyse statistical data on copyright and neighbouring rights;
2° to observe and analyze the market of copyright and neighbouring rights;
3° perform economic analyses;
4° organize public consultations;
5° Collect and develop a database of national, European or international studies concerning the economic importance of copyright and neighbouring rights, carried out by or at the request of an authority or media concerned;
6th issue notices to the Minister as part of his mission to analyse the economic importance of copyright and neighbouring obligations.
For the execution of the missions defined at 1°, 2°, 3°, 4° and 5°, the SPF Economie can carry out this task alone or entrust it to a third party with guarantees of independence and objectivity.
Art. XI.285. The SPF Economy, or the third party designated by the SPF, may apply to individuals and legal persons of public and private law all information relevant to the performance of the tasks, as defined in Article XI.284.
The King sets out the manner and time limits in which this information is requested by the SPF Economy and must be provided to it by natural persons and legal persons of public and private law.
Individuals and legal persons of public and private law shall, upon request, provide the SPF Economy, or the third party designated by the SPF, copy of the licence contracts they have entered into under this title both with management companies and with other persons, as well as information relating to the execution of such contracts.
Members of the SPF Economie or of the third party that they designate, responsible for collecting or analyzing the data, are bound by an obligation of confidentiality with respect to the individual data they process. This data and information can only be published in anonimized and aggregated manner.
The information obtained under this article may not be used for any purpose or for reasons other than those of the economic analysis of copyright and neighbouring rights.
Section 4. - Provisions common to sections 1 to 3
Art. XI.286. § 1^er. Without prejudice to paragraphs 2 and 3 and XI.288, the Regulatory Service and the Supervisory Service officers are bound by an obligation of confidentiality with respect to the confidential information they are aware of in the course of the performance of their duties. They shall not, at the end of their duties, exercise for a year no function in a company subject to the control provided for in Chapter 9 or in a large corporation within the meaning of Article 15 of the Code of Companies, of which more than half of the proceeds of exploitation come directly from the exploitation in Belgium of works or protected benefits.
§ 2. The Regulatory Service and the Control Service may in the performance of the tasks assigned to them be assisted by independent experts who report to them. These experts are bound by a confidentiality obligation with respect to the confidential information they are aware of in their mission.
§ 3. The Regulatory Service and Control Service may:
1° transmit confidential information in the course of legal proceedings brought after a legal person has been declared bankrupt or has been reorganised by a court;
2° disclose confidential information concerning legal or physical persons:
(a) injunction of a court;
(b) the Belgian or European authorities responsible for ensuring compliance with legislation on the protection of economic competition;
(c) bodies involved in the liquidation and bankruptcy of legal persons or other similar procedures;
(d) persons responsible for the legal control of the accounts of legal persons;
(e) the authorities responsible for monitoring bodies involved in the liquidation and bankruptcy of legal persons and other similar procedures.
Information may only be provided for the purpose of the recipient's completion of his legal mission as described in paragraph 1^er.
As long as this does not prejudice the accomplishment of its mission by the recipient of the information provided, as the case may be, by the Regulatory Service or the Control Service, a copy of the information is communicated to the legal or physical person concerned.
Art. XI.287. § 1^er. It is created an organic fund for the transparency of copyright and neighbouring rights.
Revenues to the Fund referred to in paragraph 1^er, as well as the expenses that may be allocated to it, are listed in the table annexed to the Organic Law of 27 December 1990 creating budgetary funds.
In the Act containing the General Estimates, the basic allowances intended, on the one hand, to the Control Service and, on the other, to the Regulatory Service, will be included in two separate activities within the same program, so that the cost of operation of both services can be optimally controlled. During the fiscal year, the Minister will only be able to redistribute the basic allocations between the activities of the same program through the agreement of the Minister of Budget.
§ 2. To feed the fund referred to in paragraph 1^er and in accordance with the terms set by the King, any management company is required to pay an annual contribution.
In the event of a withdrawal of authorization under this heading, the management corporation shall remain subject to the contribution obligation until December 31 of the year in which the withdrawal decision enters into force.
The contribution is unique and indivisible.
§ 3. The contribution of each company is calculated on the basis of copyrights and neighbouring rights it perceives on the national territory and on the basis of copyright and neighbouring rights it perceives abroad on behalf of persons residing in the national territory.
§ 4. The contribution of each rights management company consists of a percentage of the calculation base defined in paragraph 3.
This percentage must meet the following conditions:
1° without prejudice to paragraph 3, be identical for all rights management companies;
2° allow the total proceeds of contributions to cover all costs resulting from the control exercised under this chapter;
3° not exceeding 0.4% of the calculation base defined in § 3.
The King determines the percentage of the calculation base meeting the conditions referred to in the preceding paragraph.
The percentage may not exceed 0.1% of the calculation base defined in paragraph 3, for the contribution due by the representative management societies of all the rights management companies, designated by the King pursuant to articles XI.229, paragraph 5, XI.239, paragraph 7, XI.242, paragraph 3, and XI.244, paragraph 4, with respect to compensation rights, collected by those companies, referred respectively to in articles XI.229,
§ 5. Not included in the computational basis defined in paragraph 3, the fees collected by management companies provided that:
1° these rights relate exclusively to acts of exploitation performed abroad;
2° these rights shall be paid in full, if any after the removal of a management board, by the management company having the seat of its economic activity or a branch in Belgium to one or more management companies having the seat of their economic activity abroad, and
Only 3° the management company(s) referred to in 2° that have the seat of their economic activity abroad shall distribute these rights.
§ 6. The organic fund may present a deficit as long as in the same fiscal year this situation is cleared on the basis of revenues realized so that the fiscal year can be closed with a positive balance.
§ 7. Without prejudice to the other sanctions set out in this Code, the Minister of Finance may, at the request of the Minister, charge the Federal Public Service Finance with respect to the recovery of outstanding contributions.
Art. XI.288. The SPF Economie publishes an annual report on copyright and related rights. This report contains a part "Legislation", a part "Regulation", a part "Control", and a part "Economic Analysis". This report provides an overview of the activities carried out during the year by the SPF Economy.
The "Control" part will distinguish between requests for information, complaints from the debtors and the right holders and the initiative interventions of the Control Service and their results by category of work and mode of operation. Based complaints will be published by management company. This part of the report provides a true picture of the collective management sector and reports on the specific role and financial situation of management companies and recent developments in this sector.
The report is communicated to the Minister. The report is also published on the SPF Economie website.
Section 11. - Scope of application
Art. XI.289. Without prejudice to the provisions of international conventions, the authors and holders of foreign neighbours shall enjoy in Belgium the rights guaranteed by this title without the duration of such rights being extended by Belgian law.
However, if these rights expire earlier in their country, they will cease at the same time having effect in Belgium.
In addition, if it is found that Belgian authors and Belgian holders of neighbouring rights enjoy less protection in a foreign country, nationals of that country will only be entitled to the same extent as the provisions of this title.
Notwithstanding paragraph 1^er, reciprocity applies to the rights to remuneration of publishers, performers or performers, and producers of phonograms or first-ever film fixations, referred to in Articles XI.229, XI.235, XI.240 and XI.243, without prejudice to the Treaty on the European Union.
Art. XI.290. Belgian authors can claim the application for their benefit in Belgium of the provisions:
1° of the Bern Convention, and
2° of the Treaty of the World Intellectual Property Organization on Copyright (WCT), adopted in Geneva on 20 December 1996, in all cases where these provisions would be more favourable than Belgian law.
The Belgian rights holders of neighbouring rights may claim the application to their advantage in Belgium of the provisions of the International Convention on the Protection of Performers or Executors, producers of phonograms and broadcasting organizations, made in Rome on 26 October 1961, which would be more favourable than the Belgian law.
Artists and performers and producers of Belgian phonograms may claim the application to their benefit in Belgium of the provisions of the Treaty of the World Intellectual Property Organization on Interpretations and Executions and Phonograms (WPPT), adopted in Geneva on 20 December 1996, in any case where these provisions would be more favourable than Belgian law.
Section 12. - Legal protection of technical measures and information on the rights regime
Art. XI.291. § 1^er. Any person who circumvents any effective technical action, knowing or having valid reasons to think about it and knowing or having valid reasons to think that this circumvention may facilitate the commission of offences referred to in Article XI.293, is guilty of an offence. The circumvention of the technical measures applied, in accordance with or under this Article or in accordance with Article XI.336 in XVII.15, § 1^er, is deemed to facilitate the commission of offences referred to in Article XI.293.
Any person who manufactures, imports, distributes, sells, leases, advertises for sale or rental, or owns, for commercial purposes, devices, products or components, or services that:
1° are promoted, advertised or marketed in order to circumvent the protection of any effective technical measures, or
2° have only a limited commercial purpose or limited use other than bypassing the protection of any effective technical measure, or
3° are mainly designed, produced, adapted or made in order to allow or facilitate the contouring of the protection of any effective technical measures, is guilty of an offence.
Technical measures are deemed to be effective within the meaning of subparagraphs 1^er and 2 where the use of a work or benefit is controlled by the holders of the right through the application of an access code or protection process such as encryption, interference or any other transformation of the work or delivery or a copy control mechanism that achieves this protection objective.
§ 2. The persons entitled to take appropriate voluntary measures within a reasonable time, including agreements with the other parties concerned, in order to provide the user with a work or benefit, the means necessary to be able to benefit from the exceptions provided for in Article XI.189, § 2, to Article XI.190, 5°, 6°, 7°, 8°, 12°, 15°, and 17°, to Article XI.191,^erParagraph 1^er, 1° to 5°, and in article XI.217, 5°, 6°, 11°, 13°, 14° and 16°, when it has lawful access to the work or service protected by technical measures.
The King, by order deliberately in the Council of Ministers, may, under the conditions fixed by him, extend to articles XI.190, 9°, and XI.217, 7°, the list of provisions referred to in paragraph 1^er provided that this does not affect the normal operation of the works or benefits, nor does it cause unjustified prejudice to the legitimate interests of the entitled persons.
§ 3. Subsection 2 does not apply to works and benefits that are made available to the public on application in accordance with contractual provisions between parties, so that each person may have access to the place and at the time that he or she chooses individually.
§ 4. Technical protection measures referred to in paragraph 1^er and Article I.13 shall not prevent legitimate purchasers from protected works and benefits from using such works and benefits in accordance with their normal destination.
Art. XI.292. § 1^er. Any person who knowingly and without authorization, one of the following acts:
1° the deletion or modification of any information on the rights regime in electronic form, and
2° the distribution, importation for distribution purposes, broadcasting, communication to the public or the provision to the public of works or services, and whose information on the rights regime in electronic form has been deleted or modified without authorization, knowing or having valid reasons to believe that, in doing so, it entails, permits, facilitates or conceals an infringement of copyright or of a neighbouring right, is guilty of an offence.
§ 2. For the purposes of this article, "information on the rights regime" means any information provided by rights holders that identifies the work or performance, the author or any other rights holder. This expression also refers to information on the terms and conditions of use of the work or performance and any number or code representing that information.
Paragraph 1^er applies where any of these information is attached to the copy or appears in relation to the communication to the public of a work or benefit.
Section 13. - Counterfeit
Art. XI.293. Any malicious or fraudulent infringement of copyright and neighbouring rights constitutes the offence of infringement.
The same is true of the nasty or fraudulent application of the name of an author or holder of a neighbouring right, or of any distinguishing sign adopted by him to designate his work or performance; such objects will be viewed as counterfeit.
Those who knowingly sell, rent, sell or rent, hold in deposit to be rented or sold, or enter Belgian territory for a commercial purpose counterfeit objects, are guilty of the same offence.
The provisions of Chapter XI of the Act of 3 July 1969 establishing the Value-Added Tax Code are applicable to offences under Chapters 5 to 8 and those of their enforcement orders, the term "tax" being replaced by the term "remuneration".
When the facts submitted to the court are the subject of a cessation action pursuant to Article XVII.14, § 3, it can only be ruled on the criminal action after a decision passed in force of a finding has been made in respect of the action in cessation.
Part 6. - Computer programs
Art. XI.294. In accordance with Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, computer programs, including preparatory design materials, are protected by copyright and assimilated to literary works within the meaning of the Bern Convention.
Art. XI.295. A computer program is protected if it is original, in that it is an intellectual creation specific to its author. No other criteria apply to determine whether it can benefit from copyright protection.
The protection granted by this title applies to any form of expression of a computer program. The ideas and principles at the base of any element of a computer program, including those that are at the basis of its interfaces, are not protected by copyright.
Art. XI.296. Unless otherwise provided by contractual or statutory provisions, only the employer is presumed to assign property rights relating to computer programs created by one or more employees or agents in the performance of their duties or according to the instructions of their employer.
Art. XI.297. Moral law is regulated in accordance with Article 6bis, 1, of the Bern Convention.
Art. XI.298. Subject to Articles XI.299 and XI.300, heritage rights include:
(a) the permanent or provisional reproduction of a computer program, in whole or in part, by any means and in any form. When the loading, display, passage, transmission or storage of a computer program requires such reproduction of the program, these acts will be subject to the authorization of the right holder;
(b) the translation, adaptation, arrangement and any other transformation of a computer program and the reproduction of the program as a result without prejudice to the rights of the person who transforms the program;
c) any form of distribution to the public, including rental and loan, original or copies of a computer program. The first sale of a copy of a computer program by the holder of the law or with his consent shall deplete the right of distribution of that copy in the European Union, with the exception of the right to control rentals and subsequent loans of the computer program or a copy thereof.
Art. XI.299. § 1^er. In the absence of specific contractual provisions, the actions referred to in Article XI.298, (a) and (b) are not subject to the licensee's authorization, where such acts are necessary to allow the person entitled to use the computer program to use it in a manner consistent with his or her destination, including the correction of errors.
§ 2. The person who has the right to use the computer program cannot be denied reproduction in the form of a backup copy provided that the copy is necessary for the use of the program.
§ 3. The person who has the right to use the computer program may, without the permission of the right holder, observe, study or test the operation of this program in order to determine the ideas and principles that are at the basis of an element of the program, when performing a loading, display, passage, transmission or storage operation of the computer program that it is entitled to perform.
Art. XI.300. § 1^er. The right holder's authorization is not required where the reproduction of the code or the translation of the form of that code within the meaning of Article XI.298, (a) and (b), is essential for obtaining the information necessary for the interoperability of a computer program created independently with other programs and subject to the following conditions:
(a) reproduction and translation shall be performed by a person entitled to use a copy of the program, or, on behalf of the person authorized to do so;
(b) the information necessary for interoperability is not already readily available and readily accessible to it;
(c) reproduction and translation are limited to parts of the original program necessary for this interoperability.
§ 2. The provisions of the preceding paragraph may only justify the information obtained under their application:
(a) be used for purposes other than the realization of the interoperability of the independent program;
(b) be communicated to third parties, unless such communications are necessary for the interoperability of the computer program created independently;
(c) or be used for the development, production or marketing of a computer program whose expression is fundamentally similar, or for any other act that infringes copyright.
§ 3. This section may not receive an application that causes unwarranted prejudice to the legitimate interests of the holder of the right, or impairs the normal operation of the computer program.
Art. XI.301. The provisions of Articles XI.299, §§ 2 and 3, and XI.300 are imperative.
Art. XI.302. The duration of copyright protection of computer programs is determined in accordance with Article XI.166.
Art. XI.303. Violations of copyright on a computer program are sanctioned in accordance with the law.
Art. XI.304. Any person who puts in circulation or who, for commercial purposes, holds a copy of a computer program knowing that it is illegal or having reason to believe it, as well as any person who puts in circulation or holds for commercial purposes any means solely for the purpose of facilitating the unauthorized removal or the neutralization of technical devices that protect the computer program, is guilty of the offence of counterfeiting.
Part 7. - Databases
Section 1^er. - Note and application field
Art. XI.305. This title transposes Directive 96/9/EC of the European Parliament and the Council of 11 March 1996 on the legal protection of databases.
Art. XI.306. The right of database producers applies to databases of any form in which the collection, verification or presentation of content attests to a qualitative or quantitatively substantial investment.
The right of database producers applies independently of any protection of the database or its content under copyright or other rights and is without prejudice to any existing right on the works, data or other elements contained in the database.
The right of database producers does not apply to computer programs as such, including those used in the manufacture or operation of a database.
Section 2. - Producer's rights of a database
Art. XI.307. The producer of a database has the right to prohibit the extraction and/or reuse of all or part, qualitatively or quantitatively substantial, of the content of this database.
Repeated and/or systematic reuse of non-substantial parts of the content of the database is not permitted where they are contrary to a normal operation of the database or cause unjustified prejudice to the legitimate interests of the producer of the database.
The first sale of a copy of a database in the European Union by the holder of the right or with his consent, depletes the right to control the resale of that copy in the European Union.
Art. XI.308. The right of producers of databases is movable, volatile and transmitted, in whole or in part, in accordance with the Civil Code rules. In particular, it may be subject to an alienation or a simple or exclusive licence.
Art. XI.309. The right of database producers is born upon completion of the database and expires fifteen years after 1^er January of the year following the completion date of manufacture.
In the case of a database that is made available to the public in any manner before the expiry of the period referred to in paragraph 1^er, duration of protection expires fifteen years after 1^er January of the year following the date on which the database was first made available to the public.
Any modification, qualitatively or quantitatively substantial, of the content of the database, including any substantial modification resulting from the accumulation of successive additions, deletions or changes, which attests to a new, qualitatively or quantitatively substantial investment, allows to assign to the resulting database a clean duration of protection.
The producer of a database has the burden of proving the completion date of the manufacture of the database and the substantial modification of the content of the database that pursuant to paragraph 3 allows to assign to the resulting database a clean duration of protection.
Section 3. - Exceptions to the law of database producers
Art. XI.310. The legitimate user of a database that is legally made available to the public in any way, may, without the permission of the producer:
1° extract a substantial portion of the content from a non-electronic database when this extraction is carried out for a strictly private purpose;
2° extract a substantial part of the content of the database when this extraction is carried out for the purposes of illustration of teaching or scientific research provided that this extraction is justified by the non-profit purpose pursued;
3° to extract and/or reuse a substantial part of the content of the database for public security purposes or for administrative or judicial proceedings.
The name of the producer and the title of the database whose content is extracted for the purposes of illustration of the teaching or scientific research, must be mentioned.
Section 4. - Rights and obligations of legitimate users
Art. XI.311. The producer of a database that is made available to the public in any way may not prevent the legitimate user of this database from extracting and/or reuse parts, qualitatively or quantitatively non-substantial, of its content for any purpose.
To the extent that the legitimate user is authorized to extract and/or reuse only part of the database, paragraph 1^er applies to that part.
Art. XI.312. The legitimate user of a database that is made available to the public in any way may not perform acts that are in conflict with the normal operation of this database or that unjustify the legitimate interests of the producer of the database.
Art. XI.313. The legitimate user of a database that is made available to the public in any way may not prejudice the holder of a copyright or a neighbouring right relating to works or benefits contained in this database.
Art. XI.314. The provisions of articles XI.310 to XI.313 are imperative.
However, it may be contractually derogated from the provisions of Article XI.310 when it comes to databases that are made available to the public at the request in accordance with the contractual provisions so that everyone can have access to the place and at the time that they choose individually.
Section 5. - Beneficiaries of Protection
Art. XI.315. The right of database producers applies to databases of which the producer is a national of a Member State of the European Union or has its habitual residence in the territory of the European Union.
Paragraph 1^er also applies to companies and enterprises incorporated in accordance with the legislation of a Member State of the European Union and having their registered office, central administration or principal institution within the Union. However, if such a company or company has only its statutory seat in the territory of the European Union, its operations must have a real and continuous connection with the economy of a Member State.
Databases manufactured in third countries not covered by subparagraphs 1^er and 2, which are covered by agreements concluded, on the proposal of the Commission of the European Union, by the Council, are protected by the law of database producers. The duration of protection granted to these databases shall not exceed that provided for in Article XI.309.
Section 6. - Legal protection of technical measures and information on the rights regime
Art. XI.316. § 1^er. Any person who circumvents any effective technical measure, knowing or having valid reasons to think about it, is guilty of an offence.
Any person who manufactures, imports, distributes, sells, leases, advertises for sale or rental, or owns, for commercial purposes, devices, products or components, or services that:
1° are promoted, advertised or marketed in order to circumvent the protection of any effective technical measures, or
2° have only a limited commercial purpose or limited use other than bypassing the protection of any effective technical measure, or
3° are mainly designed, produced, adapted or made in order to allow or facilitate the contouring of the protection of any effective technical measures, is guilty of an offence.
Technical measures are deemed to be effective within the meaning of subparagraphs 1^er and 2 where the use of a database is controlled by law holders through the application of an access code or protection process such as encryption, interference or any other transformation of the work or delivery or a copy control mechanism that achieves this protection objective.
§ 2. Data-base producers shall take appropriate voluntary measures within a reasonable time, including agreements with other parties concerned, to provide the user with a database with the necessary means to be able to benefit from the exceptions provided for in Article XI.310, paragraph 1^er, 2° and 3°, when it has legal access to the database protected by technical measures.
§ 3. The technical measures voluntarily applied by database producers, including those implemented under voluntary agreements, as well as the technical measures implemented under an order made under Article 2bis of the Act of 10 August 1998 transposing the European Directive of 11 March 1996 on the legal protection of databases into Belgian judicial law, enjoy the legal protection provided for in paragraph 1^er.
§ 4. Subsection 2 does not apply to databases that are made available to the public at the request under contractual provisions between parties, so that everyone can have access to the place and at the time that they choose individually.
§ 5. Technical protection measures referred to in paragraph 1^er cannot prevent legitimate database acquirers from using these databases in accordance with their normal destination.
Art. XI.317. § 1^er. Any person who knowingly and without authorization, one of the following acts:
1° the deletion or modification of any information on the rights regime in electronic form, and
2° the distribution, import for distribution, broadcasting, communication to the public or the provision of databases to the public, and whose information on the rights regime in electronic form has been deleted or modified without authorization, knowing or having valid reasons to believe that, in doing so, it causes, permits, facilitates or conceals an infringement of the rights of producers of databases, is guilty of an offence.
§ 2. For the purposes of this article, "information on the rights regime" means any information provided by database producers that can identify the database, or the database producer. This expression also refers to information on the terms and conditions of use of the database as well as any number or code representing this information.
Paragraph 1^er applies where any of these information elements is attached to the copy or appears in relation to the communication to the public of a database.
Section 7. - Counterfeit
Art. XI.318. Any malicious or fraudulent infringement of the rights of database producers constitutes an offence of counterfeiting.
The same applies to the nasty or fraudulent application of the name of a database producer or any distinguishing sign adopted by him to designate his performance; such benefits will be viewed as counterfeit.
Those who, with bad or fraudulent intent, reuse, deposit to be reused or enter Belgian territory, for a commercial purpose, counterfeit databases are guilty of the same offence.
When the facts submitted to the court are the subject of a cessation action pursuant to Artikel XVII.14, XVII.15, XVII.18, XVII.19 in XVII.20, it can only be ruled on the criminal action after a decision passed in force of evidence was rendered in respect of the action in cessation.
Part 8. - Topography of semiconductor products
Section 1^er. - Exclusive right on a topography of a semiconductor product
Section 1^re. - The object and owner of the exclusive right
Art. XI.319. The creator of a topography of a semiconductor product has the exclusive and temporary right to reproduce it and operate it commercially.
For the purposes of this title, the terms topography, semiconductor product and commercial exploitation must be understood in the sense envisaged by Directive 87/54 of 16 December 1986 of the Council of European Communities concerning the legal protection of semiconductor topography or in the sense of any modification decided by the Council of the European Union pursuant to Article 1^er§ 2 of this directive.
Art. XI.320. The topography of a semiconductor product is protected as it results from the intellectual effort of its creator and is not common in the semiconductor sector. When the topography of a semiconductor product consists of common elements in the semiconductor sector, it is protected only to the extent that the combination of these elements, taken as a whole, meets the two conditions above.
Art. XI.321. The protection organized by this title concerns only the topography itself, excluding any concept, process, system, technique or coded information that are incorporated in this topography.
Art. XI.322. § 1^er. If a topography of a semiconductor product is created by an employee in the performance of his or her duties, the employer is considered creative unless otherwise stipulated.
§ 2. If a topography of a semiconductor product is created on order, the one who has placed the order is considered to be creator unless otherwise specified.
Art. XI.323. The right to protection, organized by this title, shall be transmitted to the persons who are the subject of this right under this heading.
Section 2. - Conditions relating to nationality, residence or establishment
Art. XI.324. The right to protection established by Article XI.319 is granted to natural persons who are a national of a Member State of the European Union or who have their habitual residence there.
The right to protection granted under Article XI.322 is guaranteed to natural persons referred to in paragraph 1^er and companies or other legal entities that have an effective and serious industrial or commercial establishment in the territory of a Member State of the European Union.
Art. XI.325. The persons referred to in Articles XI.319 and XI.322 who are nationals of countries other than those referred to in Article XI.324, paragraph 2, or who have their habitual residence or an effective and serious industrial or commercial establishment, provided that this has been provided for by an international instrument or decided by the Council of the European Union.
Art. XI.326. Where there is no right to protection under this section, the right to protection also applies to persons referred to in Article XI.324, paragraph 2, who:
a) conduct a first commercial operation in a Member State of the European Union of a topography that has not been the subject of commercial exploitation anywhere else in the world previously, and
(b) received from the person authorized to have the topography the exclusive authorization to carry out its commercial operation throughout the European Union.
Section 3. - The duration and expiry of the exclusive right
Art. XI.327. § 1^er. The exclusive right referred to in Article XI.319 arises when the topography is fixed or coded for the first time.
§ 2. The exclusive right expires after a period of ten years from the end of the calendar year in which the topography was the subject of commercial exploitation for the first time, anywhere in the world.
§ 3. When a topography has not been the subject of a commercial operation anywhere in the world within fifteen years from the date on which it is first set or coded, the exclusive right born under paragraph 1^er It's coming to an end.
Section 2. - Limitations of exclusive right on a topography of a semiconductor product
Art. XI.328. The holder of the right to the protection of a topography of a semiconductor product may not assert the exclusive right of reproduction and commercial exploitation granted by this title in respect of:
(a) reproduction conducted solely for the purposes of analysis, evaluation or teaching of the topography or of the concepts, processes, systems or techniques incorporated therein;
(b) the topography resulting from analyses and evaluations of another topography made in accordance with the provisions of point (a), at least to the extent that the new topography results from the intellectual effort of the creator and is not common in the semiconductor sector.
Art. XI.329. § 1^er. A person who acquires a semiconductor product without knowing or unfounded to believe that the topography of this product is protected by the exclusive right referred to in Article XI.319 cannot be denied the commercial exploitation of that product.
§ 2. However, the proprietor of the exclusive right may require that the person referred to in subsection 1 pay an amount equivalent to the person who would normally have to return to the person for the commercial exploitation of the topography for the acts committed after the person knows or is founded to believe that the topography of the semiconductor product is protected by an exclusive right.
Art. XI.330. The exclusive right referred to in Article XI.319 does not extend to the commercial exploitation of a topography or semiconductor product after it was placed on the market in a Member State of the European Union by the owner of the exclusive right or with express consent.
Art. XI.331. The action for infringement of the exclusive right on a topography of a semiconductor product is prescribed by five years from the day the offence was committed.
Art. XI.332. § 1^er. The provisions of this title do not affect other intellectual property legislation.
§ 2. The provisions of this title do not affect the application of copyright to works that would be fixed in the semiconductor product.
Part 9. - Civil aspects of the protection of intellectual property rights
Section 1^er. - General
Art. XI.333. This title transposes Directive 2004/48/EC of 29 April 2004 on respect for intellectual property rights.
Section 2. - Cessation of achievement and other measures
Art. XI.334. § 1^er. When the judge finds an infringement of a patent of invention, a supplementary certificate of protection, a right of obstructor, a right of copyright, a right of neighbour, the right of a database producer or the right to a topography of a semiconductor product, he or she shall order the termination of the latter to any violator.
The judge may also make a termination injunction against intermediaries whose services are used by a third party to infringe a right referred to in paragraph 1^er .
§ 2. Without prejudice to any damages caused to the injured party because of the breach and without compensation of any kind, the judge may order the request of the party entitled to act in counterfeit the recall of the commercial circuits, the final removal of the commercial circuits or the destruction of counterfeit goods and, in the appropriate cases, materials and instruments that have primarily been used to create or manufacture such property.
These measures are implemented at the offender's expense, unless specific reasons exist.
When assessing an application referred to in paragraph 1^er, the proportionality between the severity of the breach and the orderly corrective action, as well as the interests of third parties, shall be taken into account.
§ 3. Where in the course of a proceeding, the judge finds an infringement, the judge may order, at the request of the party authorized to act in counterfeit, the perpetrator of the breach to provide to the party that introduces this action all the information available to him regarding the origin and distribution networks of counterfeit goods or services and to provide him with all the relevant data, provided that it is a justified and proportionate measure.
The same injunction may be made to the person who has been found in possession of counterfeit goods at the commercial level, who has been found using counterfeit services at the commercial level or who has been found to provide, at the commercial level, services used in counterfeiting activities.
§ 4. The judge may prescribe the posting of his or her decision or the summary that he or she prepares, during the period that he or she determines, both outside and inside the offender's institutions and order the publication of his or her judgment or summary by means of newspapers or in any other way, at the expense of the offender.
Section 3. - Reparation of damage caused by counterfeiting
Art. XI.335. § 1^er. Without prejudice to paragraph 3, the injured party is entitled to compensation for any damage that it suffers as a result of infringement of a right referred to in Article XI.334, § 1^erParagraph 1^er.
§ 2. Where the extent of the injury cannot be determined in any other way, the judge may, in a reasonable and fair manner, set a lump sum for damages.
The judge may, as damages, order the grant to the claimant party of counterfeit goods, as well as, in appropriate cases, materials and instruments that have been used primarily for the creation or manufacture of such property, and that are still in possession of the defendant. If the value of these goods, materials and instruments exceeds the extent of actual damage, the judge fixes the relief to be paid by the applicant.
In the event of bad faith, the judge may, as damages, order the assignment of all or part of the benefit realized as a result of the breach, as well as accountability in this regard. Only the fees directly related to the counterfeit activities concerned are deducted to determine the profit to be given.
§ 3. In the event of bad faith, the judge may give the benefit of the plaintiff the forfeiture of counterfeit property, as well as, in appropriate cases, materials and instruments used primarily for the creation or manufacture of such property, which are still in possession of the defendant. If the property, materials and instruments are no longer in possession of the defendant, the judge may allocate an amount equal to the prize received for the goods, materials and instruments transferred. The confiscation thus pronounced absorbs damages and interests, in addition to the value of confiscation.
Section 4. Action on the application of technical protection measures under copyright, neighbouring rights and the right of database producers
[Art. XI.336]
Part 10. - Judicial aspects of the protection of intellectual property rights
Section 1^er. - Competence in invention patents and additional protection certificates
[Art. XI.337]
Art. XI.338. § 1^er. Any exploit of the meaning of a decision of complete or partial invalidity of a patent or a supplementary protection certificate on the basis of Article XI.57 shall be immediately communicated by the instrumenting bailiff to the Agency.
§ 2. The Agency may apply to the office of the Brussels Commercial Court if this decision may still be subject to opposition, appeal or appeal in cassation.
If the Attorney General confirms that an objection, appeal or appeal in cassation is no longer possible, the Agency shall, within one month of receipt of such confirmation, record the device of that decision in the patent file and mention an excerpt in the register.
[Art. XI.339]
[XI.340]
[XI.341]
Section 4. - Competence in topography of semiconductor products
Art. XI.342. § 1^er. Commercial courts, even where the parties are not commercial, are aware of all applications for the application of title 8, regardless of the amount of the application.
§ 2. Is solely competent to know the application referred to in paragraph 1^er :
1° the court established at the seat of the court of appeal in the jurisdiction of which the offence was committed or, at the choice of the applicant, the court established at the seat of the court of appeal in the jurisdiction of which the defendant or one of the defendants has his domicile or residence;
2° the court established at the seat of the court of appeal in the jurisdiction of which the plaintiff at his home or residence, where the defendant, or one of the defendants, has no domicile or residence in the Kingdom.
§ 3. Any convention contrary to the provisions of paragraphs 1 and 2 of this article, prior to or after the birth of the dispute, shall be null and void.
The provision of paragraph 1^er However, there is no obstacle to the dispute referred to in this section to arbitration. By derogation from Article 630, paragraph 2, of the Judicial Code, the parties shall determine the place of arbitration.
Section 5. - Common provision
Art. XI.343. The Registrars of Courts and Tribunals who have rendered a judgment or judgment under this Book shall provide a free copy of the judgment or judgment to the Agency, no later than one month after the date on which the judgment or judgment was passed in force of a judgment or after the date on which the appeal was filed or opposition filed. Reference is made to the fact that the decision has been passed in force of an appeal or opposition.
The same obligation applies to arbitral tribunals. ".
Art. 4. In Book XV, Title 1^erChapter 2, of the same Code, insert a section 4, comprising sections XV.21 to XV.25/4, as follows:
"Section 4. - Specific skills for the application of Book XI
Sub-section 1^re. - Fight against counterfeiting and piracy
Art. XV.21. Derogation from chapter 1^er, the officers referred to in Article XV.2 and XV.25/1 shall have the research and recognition skills of the offences in Book XI only for the offences referred to in Title 3, Chapter 2, Section 8, subsection 1^re.
Art. XV.22. The officers referred to in Article XV.2 and XV.25/1 may exercise the powers prescribed in Article XV.3, 1°, paragraph 1^erwhere it is reasonably permissible to assume that goods that infringe intellectual property rights are in these places.
Agents referred to in paragraph 1^er may exercise the skills set out in Article XV.3, 4°, where it is reasonably permissible to assume that these packages, boxes, barrels and other types of packaging contain goods that infringe intellectual property rights.
Agents referred to in paragraph 1^er may exercise the powers set out in Article XV.3, 5°, as part of a diligent investigation for violation of the provisions of Title 3, Chapter 2, Section 8, subsection 1^re, and where there are serious indices of infringement of intellectual property rights
Art. XV.23. By derogation from Article XV.5, § 1, paragraph 1^erthe officers referred to in Article XV.2 and XV.25/1 may in the course of their mission in respect of the offences referred to in Part 3, Chapter 2, Section 8, subsection 1^re, carry out, at the risk of the owner, holder or consignee of the goods suspected of violating an intellectual property right, the seizure of the said goods, and the means of transport, instruments, utensils and other objects likely to have been used to commit the offence.
Art. XV.24. Article XV.5, § 4, does not apply to goods suspected of violating intellectual property rights.
Art. XV.25. Where it is reasonably permissible to assume that goods that infringe intellectual property rights are in this vehicle, the agents referred to in Articles XV.2 and XV.25/1 may impose on carriers the immobilization of their vehicles and the assistance necessary to ascertain the nature and quantity of the goods being transported. In the event of an impossibility to conduct the above-mentioned audit on site, the carriage must be carried out, if the requesting agent gives the order, at a place where the verification may take place, at all costs of the carrier if an offence is raised to his or her charge.
Art. XV.25/1. In addition to the officers referred to in section XV.2, the officers of the Customs and Excise Administration, and the officials commissioned for this purpose by the Minister who to the Economy in his or her powers and by the Minister of Finance, are competent to seek and observe the offences referred to in section 3, section 8, subsection 1^re.
Agents referred to in paragraph 1^er have the same skills as the agents mentioned in Article XV.2.
Art. XV.25/2. The Minister who has the Economy in his powers approves the experts referred to in Article XV.33, paragraph 1^er, which will be designated in respect of piracy and infringement of intellectual property rights, in accordance with the conditions and modalities established by the King.
Art. XV.25/3. Agents specially designated for this purpose pursuant to section XV.62 may order the destruction of the goods that have been abandoned to the Consolidated Revenue Fund if no claim has been made by a claiming right on these goods within one month of the date of abandonment. For the purposes of this paragraph, a period of fifteen days is applicable for the destruction of perishable goods or having limited durability.
The owner or holder of the goods abandoned in the Consolidated Revenue Fund, or the holder of the intellectual property right whose violation is alleged, may be invited by these agents to destroy the goods themselves.
The costs of the conservation and destruction of the goods abandoned in the Consolidated Revenue Fund are borne by the person who is the owner at the time of abandonment. If the goods are unknown or insolvent, the holder of the goods, the consignee of the goods and the holder of the law are jointly and severally obliged to bear the costs. The King may determine the procedure for recovering costs.
The competent officer may, by derogation from paragraph 1^erto the extent that this decision does not prejudice the holder of the right, decide to give another destination to the goods. In this case, it transmits the goods to the Administration of the cadastre, of the registration and of the domains and assigns this administration of the alienation of these goods. The King may determine the procedure for the application of this alienation procedure. This procedure cannot result in costs to the Treasury.
When the destruction or alienation occurs, a description of the objects to be destroyed or disposed of is made as precisely as possible, and a sample of the objects to be disposed of.
Sub-section 2. - Collective management of copyright and neighbouring rights and transparency of copyright and neighbouring rights
Art. XV.25/4. § 1^er. Derogation from chapter 1^er, officers of the Supervisory Service, commissioned by the Minister, as well as officers of the Regulatory Service may, in the performance of their duties referred to in sections XI.275 and XI. 279:
1° to be produced, on first request and without displacement, the documents, documents or books required for their research and findings and to be copied;
2° for a preliminary warning of not less than five working days, or without prior warning, if they have reason to believe that an offence referred to in Article XV.112, enter during the usual hours of opening or working, in offices, premises, workshops, buildings, adjacent courses whose access is necessary to the fulfilment of their mission and make all the necessary findings and if necessary to seize against receiptated,
3° without prior notice, if they have reason to believe that an offence referred to in Article XV.112 is present, visit the inhabited buildings with the prior authorization of the President of the Court of First Instance, provided that the inhabited buildings include premises assigned in whole or in part to the exercise of the activity referred to in Article XI.246; visits to inhabited premises are between eight and eighteen hours and are made jointly by at least two agents.
In order to verify whether a person carries out a management activity referred to in section XI.259 without the authorization provided for in section XI.259, the officers of the Supervisory Service, designated by the Minister, shall have the same powers as are recognized in that subsection.
§ 2. In the performance of their duties, the agents referred to in paragraph 1^er may require police assistance.
§ 3. Without prejudice to their subordination to their superiors in the administration, the officers of the Supervisory Service referred to in paragraph 1^er exercise their powers under paragraphs 1^er and 2 under the supervision of the Attorney General and the Federal Prosecutor with respect to the tasks of investigating and detecting offences referred to in Article XV.112.
§ 4. In the event of the application of Article XV.31/1, the record of an offence referred to in Article XV.112 shall be transmitted to the Crown Prosecutor only when the notice was not given. In the event of the application of Article XV.62/1, the minutes shall be transmitted to the Crown Prosecutor only when the offender has not accepted the proposed transaction."
Art. 5. In Article XV.30, paragraph 2, of the same Code, the words "in Article XV.61" are replaced by the words "in Articles XV.61, XV.62 and XV.62/1".
Art. 6. In Book XV, Title 1^er, chapter 2, section 8, of the same Code, an article XV.30/1 is inserted as follows:
"Art. XV.30/1. § 1^er. The Crown Prosecutor orders the destruction of the seized goods pursuant to Article XV.23 where the interest of public security requires it or if the conservation or storage of these goods is likely to constitute a danger to public order or is problematic because of their nature, quantity or storage conditions that are applied to them, if no claim has been made by a claiming right to these goods within one month of the seizure of the goods For the purposes of this paragraph, a period of fifteen days is applicable for the destruction of perishable goods or having limited durability.
The owner or holder of the seized goods, or the holder of the intellectual property whose violation is alleged may, upon requisition of the King's Prosecutor, be invited to destroy the goods themselves.
As soon as the agents designated in accordance with Article XV.62 transmit the file for prosecution to the Prosecutor's Office, the Crown Prosecutor orders the destruction of the goods that have been abandoned to the Consolidated Revenue Fund, if no claim has been made by a claiming right on these goods within one month of the date of abandonment. For the purposes of this paragraph, a period of fifteen days is applicable for the destruction of perishable goods or having limited durability.
The costs of the destruction of goods ordered pursuant to paragraphs 1^er to 3 are supported by the owner of the goods. If the goods are unknown or insolvent, the holder of the goods, the consignee of the goods and the holder of the law are jointly and severally obliged to bear the costs. The King may, by order deliberately in the Council of Ministers, determine the modalities of the cost recovery procedure.
The Crown Prosecutor may, by derogation from paragraph 1^er, to the extent that this decision does not prejudice the holder of the right, decide to give another destination to the goods and order the alienation procedure referred to in Article 28octies, § 1^er1° of the Code of Criminal Investigation. The King may determine by order deliberately in the Council of Ministers the modalities for the application of this alienation procedure. This procedure cannot result in costs to the Treasury.
In any case where destruction or alienation is to take place, a description of the objects to be destroyed or disposed of is made beforehand, and a sample of the objects to be destroyed or disposed of.
§ 2. The storage costs of the seized goods are borne by the owner of the goods. If the goods are unknown or insolvent, the holder of the goods, the consignee of the goods and the holder of the law are jointly and severally obliged to bear the costs. The King may determine the procedure for recovering costs.
The owner or holder of the seized goods, the holder of the intellectual property right whose violation is alleged or any claiming right that manifests itself under paragraph 1^erParagraph 1^er, may, upon requisition of the Crown Prosecutor, be constituted judicial guardians of these goods.
§ 3. During the instruction and for the application of paragraphs 1^er and 2, the investigating judge has the same powers as the King's attorney.".
Art. 7. In the title of book XV, title 1^er, chapter 3, of the same Code, the words "Procedure" are replaced by the words "Procedures".
Art. 8. In Book XV, Title 1^er, chapter 3, of the same Code, it is inserted a section 1^reincluding Article XV.31, entitled "Section 1^re. General provisions".
Art. 9. In section XV.31 of the same Code, the following amendments are made:
1° in paragraph 1^er, fourth paragraph, second paragraph, is supplemented by the words "and, with respect to offences under title 3, chapter 2, section 8, subsection 1^rethe possible modalities for achieving this";
2° in paragraph 2, the words "in Article XV.61" are replaced by the words "in Articles XV.61 and XV.62".
Art. 10. In Book XV, Title 1^er, chapter 3, of the same Code, it is inserted a section 2, comprising articles XV.31/1 and XV.31/2, as follows:
"Section 2. - Transparency of copyright and neighbouring rights
Art. XV.31/1. § 1^er. When, after hearing, it is found that the rights management company is not aware of the provisions of Book XI, Title 5, its enforcement orders, its statutes or its pricing, collection or distribution rules or that a person exercises without the authorization required under Article XI.259, a management activity within the meaning of Article XI.246, the Supervisory Service may, by derogation from Section XI.246,^re, send a warning to the management corporation or to the person engaged in an unauthorized management activity to address the breach.
§ 2. The warning shall be notified to the management corporation or to the person engaged in an unauthorized management activity by a registered consignment with acknowledgement of receipt or by a copy of the fact-finding report.
The warning mentions:
1° the facts charged and the provisions broken;
2° the period in which it must be corrected by the breach;
3° that if it has not been remedied to the observed failure:
(a) the Minister, or as the case may be the official specially designated for that purpose, may bring one of the legal actions referred to in section XVII.21 and/or take the administrative sanctions referred to in sections XV.66/1, XV.66/2 and XV.66/3;
(b) in the event of an offence under section XV.112, without prejudice to the measures referred to in (a) the agents designated by the Minister, may notify the Crown Prosecutor, or apply the settlement by way of a transaction under section XV.62/1.
Art. XV.31/2. § 1^er. When, after hearing the persons concerned, it is found that the rules for the collection, pricing or distribution of the rights management companies referred to in Book XI, Title 5, Chapter 9, are not fair or discriminatory, the Regulatory Service may issue a warning to the persons concerned that they continue to remedy the breach.
§ 2. The warning shall be notified to the persons concerned by a recommended consignment with acknowledgement of receipt or by a copy of the notice of facts.
The warning mentions:
1° the facts charged and the provisions broken;
2° the period in which it must be corrected by the breach;
3° that if it has not been remedied to the apparent breach, the Regulatory Service may apply to the Brussels Court of Appeal under Article XI. 340. ".
Art. 11. In Book XV, Title 1^er, chapter 4, of the same Code, it is inserted a section 3, comprising articles XV.58 to XV.60, as follows:
"Section 3. - Fight against counterfeiting and piracy
Art. XV.58. Without prejudice to section 1^re, the King establishes the provisions and means to ensure coordination and monitoring of counterfeiting and piracy of intellectual property rights.
Art. XV.59. § 1^er. Appropriate information on the implementation of title 3, chapter 2, section 8, sub-section 1 shall be communicated by the competent public authorities and services, on initiative or upon request.^reand activities that may lead to initiatives under the latter.
The assistance provided includes in particular the communication:
1° of information that is useful in order to combat, through preventive and repressive actions, operations and practices contrary to title 3, chapter 2, section 8, under section 1^re;
2° of information on new methods used in the conduct of operations contrary to title 3, chapter 2, section 8, subsection 1^reor related to illegal activities and business patterns;
3° of the information concerning the observations made by the competent public authorities and services and the results obtained as a result of the successful application of new means and techniques to combat counterfeiting and piracy of intellectual property rights.
§ 2. The King shall determine the nature of the information and information referred to in this article and the modalities for their exchange between the competent authorities and public services.
Art. XV.60. Any judgment or judgment rendered by courts and tribunals under title 3, chapter 2, section 8, subsection 1^re, is communicated free of charge, by ordinary letter, to the Office of Intellectual Property in the month of the decision, and to the diligence of the Registrar of the competent jurisdiction.
The Registrar is also required to promptly notify the Intellectual Property Office of any appeal against such a decision.".
Art. 12. In Book XV, Title 2, Chapter 1^er, of the same Code, it is inserted a section 1^reincluding Article XV.61, entitled "Section 1^re. General provisions".
Art. 13. In Book XV, Title 2, Chapter 1^er, of the same Code, it shall be inserted a section 2, comprising articles XV.62 and XV.62/1, as follows:
"Section 2. - Provisions relating to Book XI
Sub-section 1^re. - Fight against counterfeiting and piracy
Art. XV.62. § 1^er. By derogation from section XV.61, officers specially designated for this purpose, respectively by the Minister who has the Economy in his or her powers or by the Minister of Finance, may, in the light of the minutes found to be an offence under heading 3, chapter 2, section 8, subsection 1^re, and prepared by the agents referred to in Articles XV.2 and XV.25/1, propose to the offender the payment of an amount that extinguishes the public action, provided that the offender has abandoned the goods to the public treasury and that the injured party has waived a complaint. The transaction proposal is notified to the offender by registered mail with acknowledgement of receipt.
The amount set out in paragraph 1^er, may not exceed the maximum of the fine provided for under heading 3, chapter 2, section 8, subsection 1^replus additional decimals.
Where the offence has resulted in conservation and destruction costs, the amount is increased from the amount of these costs. The portion of the amount paid to cover these costs is allocated to the organization or to the person who exposed them.
The injured party is notified, within fifteen days of the date of the recommended shipment referred to in paragraph 1^erthe existence of the proposed transaction.
The payment made within the time limit set out in the proposed transaction extinguishes public action unless previously a complaint has been sent to the King's Prosecutor, the investigating judge has been required to instruct or the court has been seized of the fact. In these cases, the amounts paid are returned to the offender.
§ 2. The rates as well as the terms and conditions of the transaction, its payment, the collection of its amount and the procedure for abandonment and destruction of the goods are fixed by the King.
§ 3. In the event of application of this article, the minutes shall be transmitted to the Crown Prosecutor only when the offender has not accepted the proposed transaction.
Sub-section 2. - Collective management of copyright and neighbouring rights
Art. XV. 62/1. The officer specially designated for this purpose by the Minister may, in the light of the minutes that find an offence under section XV.112, §§ 1^er and 2, propose to the offenders the payment of a sum that extinguishes public action.
The rates as well as the payment and collection modalities are fixed by the King.
The amount set out in paragraph 1^er may not exceed the maximum of the fine provided for in Article XV.112 plus additional decimals.
The payment made within the specified time limit extinguishes the public action unless a complaint has been sent to the King's Prosecutor, the investigating judge has been required to instruct or the court has been seized of the fact. In this case, the sums are returned to the offender.".
Art. 14. In Book XV, Title 2, Chapter 2, of the same Code, it is inserted a section 3, comprising articles XV.66/1 to XV.66/4, as follows:
"Section 3. - Administrative sanctions on copyright and neighbouring rights
Art. XV.66/1. § 1^er. The Minister may fully or partially withdraw the authorization referred to in section XI.259 if the conditions set out in the Minister's grant are not or more respected, as well as when the corporation commits or has committed serious or repeated breaches of the provisions of Book XI, Title 5, its enforcement orders or the provisions of its statutes or regulations.
When the withdrawal of the authorization is contemplated, the Minister shall first notify the management company concerned by registered mail with acknowledgement of receipt. It shall inform the management corporation that, as of the date of such notification, it shall have a period of two months to consult the record that has been constituted, be heard by the Minister or the person designated for that purpose, and make its means.
The Minister determines the date on which the withdrawal comes into force. Any withdrawal is published to the Belgian Monitor within thirty days of the withdrawal decision. Between the date of notification of the withdrawal decision to the management company and the date of entry into force of the withdrawal, without prejudice to paragraph 4, the management company shall take the prudent and expeditious measures to cease the management activities for which the authorization is withdrawn. It shall, in particular, immediately notify, in accordance with the terms and conditions established by the Minister, the rights holders who have entrusted the Minister with the management of their rights, the withdrawal decision and the effective date of the Minister.
On the effective date of the withdrawal of the authorization, it is a resolution of the contracts by which the rights holders entrust the management of their rights to the management company. In the event of a partial withdrawal, the contracts are terminated as they relate to the activity for which the authorization was withdrawn.
§ 2. As of the date of publication to the Belgian Monitor of the decision to withdraw the authorization, shall be paid to the deposits and consignments, on an account opened on the initiative of the special commissioner(s) referred to in paragraph 4, mentioning in the name of the company whose authorization is withdrawn:
1° the rights still due for periods prior to the effective date of the withdrawal decision;
2° the rights subject to compulsory collective management that are still due for periods after this entry into force, if, on the date of the entry into force of the decision to withdraw the authorization, there is no other management company authorized to manage these rights for the same class of eligible persons.
The management of the account referred to in the preceding paragraph is the sole responsibility of the special commissioners referred to in paragraph 4.
§ 3. The actions and decisions of the company whose authorization has been withdrawn, which notwithstanding the decision to withdraw, are null and void.
§ 4. The Minister may designate one or more special commissioners for the period of time determined by the Minister to have the required legal, financial and accounting skills, replacing the competent bodies for the purposes and within the limits of the implementation of the termination of the management activities for which the authorization is withdrawn. For the purpose of carrying out their mission, special commissioners may be assisted by any expert.
The Special Commissioner(s) referred to in paragraph 1^er is the task of distributing the rights referred to in paragraph 2, pursuant to the rules of distribution of the management corporation or, if they were found to be non-compliant with the law or the statutes of the management society, in accordance with the rules of distribution that they set. Preliminarily, draft distribution rules are communicated to the Supervisory Service for advice. The Panel renders its notice within 15 days of receipt of the projects. For the purposes and within the limits of the implementation of the termination of management activities for which the authorization is withdrawn, the Commissioner(s) referred to in paragraph 1^er, are authorized to extend contracts for the collection and management of rights.
The emoluments of the Special Commissioner(s) are fixed by the Minister according to a scale established by the King and are due by the corporation whose authorization has been withdrawn. They are advanced by the organic fund established pursuant to Article XI.287 and are recovered by the company's dependent SPF Economy whose authorization has been withdrawn.
The Special Commissioner(s) shall provide at least once a quarterly written report of their activities to the Minister.
The mission of the Special Commissioner(s) is terminated by a decision of the Minister.
Art. XV.66/2. § 1^er. Without prejudice to the other measures provided by law, if, at the end of the period set out in section XV.31/1, the failure of the Minister or officer specifically designated for this purpose may, the management corporation or the person engaged in an unauthorized management activity having been able to assert its means, pursuant to subsection 2:
1° publish that, notwithstanding the time limit set under section XV.31/1, the management corporation or the person engaged in an unauthorized management activity has not complied with Book XI, Title 5, its enforcement orders, its statutes or its rules of collection, pricing or distribution;
2° suspend or prohibit, in whole or in part, for the duration that it determines the direct or indirect exercise of the management activity referred to in Article XI.246 carried out without authorization.
3° impose an administrative fine of between 100 and 110,000 euros to the management company, except in case of breach of the provisions referred to in Article XV.112.
§ 2. Where any of the measures referred to in paragraph 1^er, is considered, the Minister or the officer specially designated for this purpose shall notify, in advance, his or her grievances to the management corporation concerned or to the person performing an unauthorized management activity, by registered mail with acknowledgement of receipt.
In such a consignment, it shall be known to the management corporation or to the person carrying on an unauthorized management activity:
1° the facts about which the procedure is initiated;
2° the fact that the offender has the opportunity to submit in writing, by registered mail, his or her defences within two months of the day of notification of the Minister's or specially designated agent's sending to that effect, and that he or she has the right to request the Minister or the specially designated officer to that effect to present his or her defence orally;
3° the fact that the offender has the right to be assisted by counsel;
4° the fact that the offender has the right to consult his case;
5° a copy of the warning referred to in Article XV.31/1.
§ 3. A person engaged in an unauthorized management activity who performs acts or makes decisions in violation of the suspension or prohibition is responsible for the resulting harm to third parties.
When the person referred to in the preceding paragraph is a legal person, the members of the administrative and management bodies and the persons responsible for the management who perform acts or make decisions in violation of the suspension or prohibition are jointly liable for the harm caused to the third parties.
The suspension or prohibition decision is published in the Belgian Monitor. The acts and decisions in violation of the latter are null and void.
§ 4. The Minister's decisions referred to in paragraph 1^er, 1° and 2°, exit their effects with respect to the management company or the person concerned at the date of their notification to the company or the person concerned by registered mail with acknowledgement of receipt and, with respect to third parties, the date of their publication to the Belgian Monitor in accordance with the provisions of paragraph 1^er.
§ 5. Upon the expiry of the period referred to in paragraph 2, paragraph 2 (2), or, where appropriate, after the written or oral defence by the offender or his counsel, the official specially designated for that purpose may impose an administrative fine on the offender on the basis of paragraph 1^er .
The decision to impose an administrative fine is enforceable on the expiry of the one-month period from the date of notification referred to in paragraph 6.
§ 6. The decision is notified by registered mail to the offender.
§ 7. The grievor, referred to in paragraph 5, may not impose an administrative fine on the expiry of a five-year period from the day the act is committed, any appeal proceedings not included.
Art. XV.66/3. § 1^er. Without prejudice to other measures provided by law, if at the end of the time limit set by the King the information requested under section XI.285 by the SPF Economy, or the third party designated by the King, is not provided by a natural person or legal person of public or private law, the Minister or agent specially designated for this purpose may impose an administrative fine of an amount between 100 and 110,000 euros.
§ 2. Where the administrative fine referred to in paragraph 1^er, is considered, the Minister or officer specially designated for this purpose shall notify the person concerned beforehand, by registered mail with acknowledgement of receipt.
In this consignment, it shall bring to the attention of the person concerned the fact that it has the opportunity to express, by registered consignment, its defences within two months of the day of notification of the recommended sending of the Minister or of the specially designated agent for that purpose, and that it has the right to request the Minister or the specially designated agent for that purpose to present his defence orally.
§ 3. The appeals against the administrative fine referred to in this article and against the administrative acts preparatory to it shall be brought exclusively to the Brussels Court of Appeal.
The decision to impose an administrative fine is enforceable on the expiry of the one-month period from the day of notification referred to in paragraph 2.
The appeal is suspensive.
§ 4. The decision is notified by registered mail to the offender.
§ 5. The administrative fine may not be imposed on the expiry of a one-year period from the day the requested information should have been communicated to the SPF Economy or to the third party it designates, any appeal proceedings not included.
Art. XV.66/4. Without prejudice to the right to quote before the competent judge, the recovery of administrative fines referred to in Articles XV.66/2 to XV.66/3 may take place by means of constraint to the diligence of the administration of the T.V.A., the registration and the domains. ".
Art. 15. In Book XV, Title 3, Chapter 2, of the same Code, a section 8, comprising sections XV.103 to XV.113, is inserted as follows:
"Section 8. - Penalties relating to offences in Book XI
Sub-section 1^re. - Fight against counterfeiting and piracy
Art. XV.103. § 1^er. A level 6 penalty shall be imposed on a person who, in business life, infringes with a wicked or fraudulent intent on the rights of the holder of a trademark or service, a patent of invention, a supplementary certificate of protection, a right of obstructor, a drawing or a model, as established by:
1) in respect of trademarks:
(a) Article 2.20, paragraph 1^era., b. and c. of the Benelux Intellectual Property Convention of 25 February 2005 approved by the Act of 22 March 2006;
(b) Regulation 9 (EC) No. 207/2009 of the Council of 26 February 2009 on the community mark;
(2) in respect of patents and additional protection certificates:
(a) Article XI.29;
(b) Article 5 of Regulation (EC) No. 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary certificate of protection for medicines;
(c) Article 5 of Regulation (EC) No. 1610/96 of 23 July 1996 of Parliament and of the Council concerning the establishment of a supplementary protection certificate for phytopharmaceutical products;
3) in respect of the right to obstruct:
(a) Articles XI.113;
(b) Article 13 of Regulation (EC) No. 2100/94 of 27 July 1994 of the Council of European Communities establishing a regime of community protection for plant varieties;
(4) in drawings or models:
(a) Article 3.16 of the Benelux Intellectual Property Convention of 25 February 2005 approved by the Act of 22 March 2006;
(b) Article 19 of Regulation (EC) No 6/2002 of 12 December 2001 of the Council of European Communities on Community Designs or Models.
For the purposes of the preceding paragraphs, it is necessary to consider that there has been a breach in the life of business as soon as this breach is carried out in a commercial activity whose purpose is to achieve an economic advantage.
§ 2. Paragraph 1^er in this section, in particular, does not apply to:
1) in respect of trademarks:
(a) the acts referred to in Article 2.23 of the Benelux Intellectual Property Convention of 25 February 2005 approved by the Act of 22 March 2006;
(b) the acts referred to in articles 12 and 13 of Regulation (EC) No 207/2009 of the Council of 26 February 2009 on the community mark;
(2) in respect of patents and additional protection certificates:
(a) the acts referred to in articles XI.32, XI.33, XI.34, § 1^erand XI.36;
(b) the acts performed only in order to carry out necessary studies, tests and tests in accordance with Article 6bis, § 1, last paragraph, of the Law of 25 March 1964 on Drugs;
3) in respect of the right to obstruct:
(a) the acts referred to in articles XI.114, XI.115, XI.116 and XI.117;
(b) the acts referred to in articles 14, 15 and 16 of Regulation (EC) No. 2100/94 of 27 July 1994 of the Council of European Communities establishing a regime of community protection for plant varieties;
(4) in drawings or models:
(a) the acts referred to in articles 3.19 and 3.20 of the Benelux Intellectual Property Convention of 25 February 2005 approved by the Act of 22 March 2006;
(b) the acts referred to in Articles 20 to 23 of Regulation (EC) No 6/2002 of 12 December 2001 of the Council of European Communities on Community Designs or Models.
Art. XV.104. The offences provided for in articles XI.291, § 1^er, XI.292 and XI.293 are punished by a level 6 sanction.
Art. XV.105. The offences referred to in Article XI.304 are punishable by a level 6 penalty.
Art. XV.106. The offences provided for in articles XI.316, § 1, XI.317 and XI.318 are punishable by a level 6 penalty.
Art. XV.107. A level 1 penalty shall be imposed on a person who, with a bad or fraudulent intention, is unduly presumed in the life of the business of the quality of the holder or applicant of a mark of product or service, a patent of invention, a complementary certificate of protection, a right of obedience, a drawing or a model.
Art. XV.108. It is punishable by a level 5 penalty, which, with a wicked or fraudulent intention, approaches in all places natural or legal persons to propose to them:
- to register the rights referred to in Article XV.103, § 1, in unofficial records or publications, by making them believe that such registration is necessary for these rights to be effective;
- either to subscribe any title intended to protect inventions or creations but which does not benefit from any official, national or international recognition or guarantee, by abusing the trust, ignorance or credulity of these persons.
Art. XV.109. A sanction of level 4 shall be imposed on those who intentionally prevent or hinder the execution of the mission entrusted by this Code to the agents cited in articles XI.43, § 2, and XI.128, § 2.
Any false statement is punishable by the same penalties.
These include:
(1) refuse to provide the information or to disclose the requested documents;
(2) knowingly provide inaccurate information or documents.
Art. XV.110. Are punished by a level 3 sanction:
1° Users who intentionally commit a breach of Article XI.272, § 2;
2° the actors of the art market that intentionally prevent or hinder the exercise of the right to information referred to in Article XI.178, § 4.
Any false statement is punishable by the same penalties.
These include:
(1) refuse to provide the information or to disclose the requested documents;
(2) knowingly provide inaccurate information or documents.
Art. XV.111. § 1^er. In the event that the trademark, patent, the supplementary protection certificate, the right of obstructor, the drawing or model, whose violation is alleged, has been declared null, has been ousted or terminated by a judicial decision cast in force of thing tried or following an administrative decision or the will or negligence of its holder, no penalty may be imposed for acts performed after the date of termination
§ 2. By derogation from Article 15 of the Code of Criminal Investigation, if the accused raises an exception from the invalidity, invalidity or defecation of the intellectual property right whose violation is alleged and if the jurisdiction relating to the examination of this matter is exclusively reserved by law or by a regulation of the European Union to another authority, the court shall override and grant it a period of time to bring the appropriate action before the competent authority.
The limitation of public action shall be suspended until the action in nullity, the action in defecation referred to in paragraph 1^er, or the termination action referred to in sections XVII.2 et seq. of this Code, has been the subject of a decision taken in force of evidence. If the competent body declares the justified exception or the decision on the exception is attached to the merits, the limitation is not suspended.
Sub-section 2. - Collective management of copyright and neighbouring rights
Art. XV.112. § 1^er. A penalty of level 4 shall be imposed on those who commit an offence under or under the provisions of the articles:
1° XI.247, § 1^er;
2° XI.248, § 3;
3° XI.249, § 1^er and § 2;
4° XI.250;
5° XI.256, § 1^er;
6° XI.257;
7° XI.259, § 1^er.
§ 2. A sanction of level 4 shall be imposed on those who intentionally prevent or hinder the execution of the mission of the persons referred to in Article XV.25/4 with a view to seeking and detecting offences or breaches of the provisions of paragraph 1^er.
§ 3. A Level 3 sanction was imposed for those who, as an independent commissioner or expert, have certified, approved or confirmed accounts, annual accounts, results accounts, or consolidated accounts, periodic reports, transactions or information where the provisions of Book XI, Title 5, Chapter 9 or orders made for its execution have not been complied with knowing that they had not been complied with.
§ 4. A level 3 sanction is imposed, those who do not pay the contributions due to the organic fund for the control of rights management companies, those who do not pay them in full or do not pay them in a timely manner.
§ 5. When the facts submitted to the court are the subject of an action on termination, it can only be decided on criminal action after a decision in force of judgment has been made with respect to the action on termination.
Art. XV. 113. A level 4 penalty shall be imposed on those who violate the professional secret provided for in Article XI.281. ".
Art. 16. In Article XV.130 of the same Code, the words "in Articles XV.103, XV.112, XV.107 to XV.109, and" are inserted between the words "In case of conviction for an offence" and the words "in Books VIII and IX".
Art. 17. In Book XV, Title 2, Chapter 3, Section 2, of the same Code, an article XV.130/1 is inserted as follows:
"Art. XV.130/1. § 1^er. In case of conviction for an offence under Article XV.103, § 1^er, the court may order, at the request of the civil party and provided that this measure is proportional to the seriousness of the infringement of the law, that the instruments used primarily to commit the offence that have been confiscated, and that samples of the goods that infringe intellectual property rights are handed over to the holder of the law.
§ 2. The court may also order, in the event of a conviction for an offence under Article XV.103, § 1^er, and in view of the seriousness of the breach, the destruction of goods that infringe upon an intellectual property right and that have been the subject of a special confiscation, at the expense of the convict, even if these goods are not the property of the convict.
Art. 18. In Book XV, Title 2, Chapter 3, Section 2, of the same Code, an article XV.130/2 is inserted as follows:
"Art. XV.130/2. For the offences referred to in Article XV.104 and XV.106, confiscated revenues and objects may be allocated to the civil party to account or to the prejudice suffered."
Art. 19. In Book XV, Title 2, Chapter 3, Section 2, of the same Code, an article XV.130/3 is inserted as follows:
"Art. XV.130/3. In condemning the offence leader under Article XV.105, the judge may make the confiscation of the material materials forming the object of the offence. ".
Art. 20. In Book XV, Title 2, Chapter 3, Section 2, of the same Code, an article XV.130/4 is inserted as follows:
"Art. XV.130/4. By derogation from section 43 of the Criminal Code, the court shall, in the event of a conviction for one of the offences referred to in section XV.112, determine whether special confiscation is warranted. This provision is not applicable in the case of recidivism referred to in section XV.72. ".
Art. 21. In article XV.131 of Book XV, title 2, chapter 3, section 3, of the same Code, the words "in Title III, Chapter II, Section 8, of this book" are inserted between the words "In case of conviction for an offence" and the words "in Books VIII and IX".
Art. 22. In Book XI, Title 2, Chapter 3, of the same Code, a section 4, comprising Article XV.131/1, is inserted as follows:
"Section 4. - Final or temporary closure
Art. XV.131/1. In the event of a conviction for an offence under 3, chapter 2, section 8, courts and tribunals may order, either on a final basis or on a temporary basis, the total or partial closure of the institution operated by the convicted person and the permanent or temporary prohibition of commercial activity by the convicted person. ".
Art. 23. In Book XI, Title 2, Chapter 3, of the same Code, it is inserted a section 5, comprising Article XV.131/2, as follows:
"Section 5. - Seizure of income
Art. XV.131/2. In the event of execution or representation made in fraud of copyright or neighbouring law, the proceeds may be seized as objects from the offence. They will be allocated to the claimant in proportion to the share that his or her work or performance has had in representation or execution, and will be taken into account in the evaluation of reparation. ".
Art. 24. In book XVII, title 1^erin the same Code, a chapter 4 is inserted, which reads as follows:
"Chapter 4. - Special provisions in Book XI
Section 1^re. - Action on cessation of infringement of intellectual property rights
[Art. XVII.14]
Art. XVII. 15. § 1^er. Any action on termination of an infringement of an intellectual property right with the exception of the patent law, including the right to supplemental protection certificates, copyright, neighbouring law or the right of database producers referred to in Article XVII.14, § 1^er, which is also the purpose of the termination of an act referred to in Article XVII.1 or Article 18 of the Act of 2 August 2002 relating to misleading advertising and comparative advertising, abusive clauses and remote contracts with respect to liberal professions, is brought exclusively before the president of the competent court under Article XVII.14, § 1^er.
§ 2. Any action to terminate an infringement of the right of patents, including the right to supplemental protection certificates, referred to in Article XVII.14, § 2, which also applies to the termination of an act referred to in Article XVII.1 or Article 18 of the law of 2 August 2002 relating to misleading advertising and comparative advertising, abusive clauses and remote contracts in respect of the professions before the court, shall be carried exclusively §
§ 3. Any action to terminate an infringement of the copyright, the rights of neighbours or the rights of the database producers referred to in Article XVII.14, § 3, which also applies to the termination of an act referred to in Article XVII.1 or Article 18 of the law of 2 August 2002 relating to misleading advertising and comparative advertising, to the abusive clauses and to the contracts of distance in respect of the professions of the president, §
§ 4. Any action relating to the application of technical protection measures within the framework of copyright, neighbouring rights and the law of database producers referred to in Article XI. 336, § 1^er, which is also the purpose of the termination of an act referred to in Article XVII.1 or Article 18 of the Act of 2 August 2002 relating to misleading advertising and comparative advertising, abusive clauses and remote contracts with respect to liberal professions is brought exclusively before the president of the competent court under Article XI.336, § 1^er.
Art. XVII.16. When ordering the termination, the President may order the measures provided for in Article XI.334, §§ 2 to 4, or by the Benelux Intellectual Property Convention, under the applicable law, to the extent that they are of a nature to contribute to the cessation of the breach or its effects, and to the exclusion of measures to redress the damage caused by the breach.
Art. XVII.17. Where the existence of an intellectual property right, protected in Belgium for a deposit or registration, is invoked in support of an application based on Article XVII.14, §§ 1^er and 2, or the defence against that request, and that the President of the court finds that this right, deposit or registration is null or void, it declares this invalidity or loss and orders the deletion of the deposit or registration in the registers concerned, in accordance with the provisions relating to the intellectual property right concerned.
By derogation from section XVII.18, paragraph 3, the enforceability of the invalidity or defecation decision referred to in paragraph 1^er, is settled in accordance with the relevant intellectual property law provisions.
Art. XVII.18. The action is formed and educated according to the forms of the referee.
It is decided on the action notwithstanding any prosecution due to the same facts before a criminal court.
The judgment is enforceable by provision, notwithstanding any appeal and without bail, unless the judge ordered that it be provided with one.
Art. XVII.19. § 1^er. The action based on Article XVII.14, §§ 1^er and 2, shall be formed at the request of persons entitled to act in counterfeit according to the provisions relating to the relevant intellectual property law.
§ 2. In the event of an infringement of copyright or a neighbouring right, the action based on Article XVII.14, § 3, is formed at the request of any interested person, an authorized management company or a professional or interprofessional group with civil personality.
In the event of a breach of the right of the database producer, the action based on Article XVII.14, § 3, shall be taken at the request of the persons authorized to act in counterfeit according to the provisions concerning the law of the database producer.
Art. XVII.20. § 1^er. Any decision made on an action based on section XVII.14 shall, in the eighteen, and at the due diligence of the Registrar of the competent court, be communicated to the Minister, unless the decision has been made at his request.
In addition, the Clerk is required to promptly inform the Minister of the appeal against any decision made under section XVII.14.
§ 2. The President may authorize the posting of his or her decision or the summary that he or she prepares, during the period that he or she determines, both outside and inside the offender's institutions and order the publication of his or her judgment or summary by means of newspapers or in any other way at the offender's expense.
These advertising measures may, however, be permitted only if they are likely to contribute to the cessation of the offence or its effects.
The Chairperson shall determine the amount that the party to whom an advertising measure has been granted in accordance with paragraph 1^er and who has executed the measure despite a timely appeal against the judgment, will have to pay the party to the detriment of which the advertising measure was pronounced, if it is cancelled on appeal.
Section 2. - Termination of control of copyright and related rights management companies
Art. XVII.21. § 1^er. If, at the end of the period referred to in Article XV.31/1, the Minister may, without prejudice to the other measures provided by law, request the President of the Brussels Court of First Instance or, if the defendant is a merchant, at the choice of the Minister, the President of the Brussels Court of Commerce or the President of the Brussels Court of First Instance, to:
1st note the existence and order the termination of the breach of the provisions of this title, enforcement orders and the statutes of the management company and its rules of pricing, collection or distribution;
2° if the failure to comply with the legal obligations of the management company is likely to cause serious and imminent harm to the interests of the right-holders, substitute for the boards of administration and management of the corporation one or more provisional directors or managers who have, alone or collegially, the powers of the replaced persons. The president of the court determines the duration of the mission of the provisional directors or managers.
§ 2. The actions referred to in paragraph 1^er are trained and educated according to the forms of the referee.
They may be filed by contradictory request in accordance with articles 1034ter to 1034sexies of the Judicial Code.
It is decided on the action notwithstanding any prosecution due to the same facts before a criminal court.
The President of the competent court may order the posting of the judgment or summary that he or she shall prepare during the period that he or she determines both within and outside the premises of the defendant and at the expense of the defendant, as well as the publication of the judgment or summary at the defendant's expense through the newspapers or in any other manner.
The judgment shall be enforceable by provision, notwithstanding any remedy, and without bail.
Any decision shall be communicated to the Minister unless the decision has been made at the request of the Registrar of the competent court in the eighty-year period. In addition, the Clerk is required to promptly inform the Minister of the appeal against any decision made under this section. ".
CHAPTER III. - Amendments to the Act of 8 July 1977 approving various international acts
Art. 25. In Article 1^er of the Act of 8 July 1977 approving various international acts, the 4th is repealed.
Art. 26. In the same Act, an article 1/1 is inserted, as follows:
"Art. 1/1. For the purposes of this Act and enforcement orders, the following means:
1° Regulation 1257/2012: Regulation No. 1257/2012 of 17 December 2012 of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of a unitary protection conferred by a patent;
2° the European patent: a patent granted by the European Patent Office ("EPO") in accordance with the rules and procedures provided for in the European Patent Convention, regardless of whether or not the patent enjoys the unitary effect under Regulation 1257/2012.
3° the European patent with unitary effect: the European patent to which a unitary effect is conferred under Regulation 1257/2012;
4° the European patent without a unitary effect: the European patent to which no unitary effect is conferred under Regulation 1257/2012;
5° the unified jurisdiction of the patent: the common jurisdiction of the Contracting States established by the Agreement on the Establishment of a Unified Patent Court, signed on 19 February 2013.
Art. 27. Section 4 of the Act is replaced by the following:
"Art. 4. The patent granted after a European grant procedure is subject to the provisions of the European Patent Convention which are applicable after grant. ".
Art. 28. Section 5 of the Act is replaced by the following:
Art. 5. § 1^er. If the text in which the European Patent Office issues or maintains a European patent without a unitary effect, following an application in which Belgium has been designated, is not written in one of the national languages, the holder of this patent must provide the Service with a translation in one of these languages, within three months from the date of the publication of the mention of the grant of the patent without a unitary effect.
§ 1^erbis. Where the patent holder has not observed the period referred to in paragraph 1^erand that this non-compliance has as a direct consequence the loss of patent rights under paragraph 5, the Service shall restore the rights of the patent holder if:
1° a request for this purpose shall be submitted to the Service in accordance with the conditions and within the time limit set by the King;
2° the uncompleted act must be done within the time limit for the submission of the request under 1°;
3° the request sets out the grounds for which the period referred to in paragraph 1^er was not observed;
4° the Service notes that failure to observe the time limit has occurred although the due diligence required in this case has been exercised.
The request for restoration is registered in the Register.
A statement or other evidence in support of the reasons referred to in 3° is provided to the Service within a time limit set by the King.
The request for restoration is processed only after the restoration tax prescribed for this request has been paid.
The request for restoration cannot be fully or partially rejected without giving the requesting party the opportunity to present its observations on the refusal envisaged within the time limit set by the King.
When the request is granted, the legal consequences of non-observing the time limit are deemed not to have occurred.
The decision to restore or refuse is entered in the Register.
If the request for restoration is granted, any annual tax that would have expired during the period beginning on the date on which the loss of rights occurred, and up to the date on which the restoration decision is registered, must be paid within four months from that date.
§ 2. Any person who, between the time of the loss of rights provided for in paragraph 5 and the time when the restoration of such rights is released in accordance with paragraph 1^erbis, has in good faith used in Belgium the invention subject to the patent or taken to this end the necessary measures can continue to use this invention for the needs of its own company. The right recognized by this paragraph may only be transmitted to the company to which it is attached. Is reserved the application of the law of 10 January 1955.
§ 3. The request for restoration in the rights referred to in paragraph 1^erbis is not admissible for the time limits referred to in the same paragraph.
The King shall determine, if any, other time limits than those mentioned in the preceding paragraph, for which the request for restoration is not admissible.
§ 4. The procedure for restoring the rights referred to in paragraph 1^erbis is retroactively applicable to European patents issued prior to the entry into force of this Article, which meet the following cumulative conditions:
1° European patent is not written in a national language;
2° the European patent is maintained following an opposition procedure;
3° the European patent is deemed to have no effect in Belgium because of the provision of a translation of the patent to the Service after the expiry of the three-month period referred to in paragraph 1^er and before this section comes into force;
4° the restoration procedure referred to in paragraph 1^erbis is not applicable to the patent on the date of entry into force of this Article, taking into account the time limits provided under subsection 1^erbis, 1° ; en
5° the request for restoration is filed with the Service within six months of the entry into force of this section.
§ 5. If no action is given to the provisions of paragraph 1^er, the European patent without a unitary effect is considered not having had any effects in Belgium since the origin.
§ 6. The Service maintains a register of all European patents without a unitary effect referred to in paragraph 1^erwhich have effect on the national territory, holds the text or possibly translation available to the public and receives national taxes for the maintenance of the patent for the years following the year of publication of the grant of the patent.
Art. 29. In the same Act, an article 5/2 is inserted, as follows:
"Art. 5/2. The provisions of the Agreement relating to the unified jurisdiction of the patent apply to European patents without a unitary effect that have taken effect on Belgian territory as national patents, subject to the application of Article 83 (1) to (3) and (5) of this Agreement.".
Art. 30. In the same law an article 5/3 is inserted, as follows:
"Art. 5/3. When the unitary effect of a European patent has been registered under Regulation 1257/2012, this European patent is deemed not to have taken effect as a national patent on the date of publication of the mention of its grant in the European Patent Bulletin. ".
CHAPTER IV. - Amendment of the Act of 27 December 1990 creating budgetary funds
Art. 31. The table annexed to the Act of 27 December 1990 establishing budgetary funds is supplemented as follows:
XY. Funding for the transparency of copyright and neighbouring rights
Nature of affected revenues: An annual contribution to finance the regulation of copyright and neighbouring rights, the control of rights management societies and the economic analysis of copyright and neighbouring rights, pursuant to articles XI.274 to XI.285 of Book XI of the Economic Law Code.
Nature of authorized expenditures: Payment of expenses to the Federal Public Service with copyright in its powers, pursuant to the provisions of Articles XI.274 to XI.285 of Book XI of the Economic Law Code or its Implementing Orders."
CHAPTER V. - Modificative and abrogatory provisions
Art. 32. § 1^er. Are repealed:
- the Act of 26 May 2002 on intra-community cessation of consumer interests;
- the Act of 6 April 2010 concerning the regulation of certain procedures under the Act of 6 April 2010 on market practices and consumer protection, as amended by the Act of 25 August 2012;
- Articles 114 to 118 of the Act of 6 April 2010 on market practices and consumer protection.
§ 2. Are also repealed:
- the Act of 28 March 1984 on Invention Patents, last amended by the Act of 10 January 2011 on the Enforcement of the Treaty on the Law of Invention Patents and the Act Revisioning the Convention on the Grant of European Patents, and amending various provisions in respect of invention patents;
- the Act of 21 April 2007 on various provisions relating to the procedure for filing European patent applications and the effects of these European patent applications and patents in Belgium, last amended by the Act of 10 January 2011 referred to above;
- Act of 29 July 1994 on the supplementary certificate of protection for medicines;
- the Act of 5 July 1998 on the supplementary protection certificate for phytopharmaceutical products;
- the Act of 8 July 1977 approving the following international acts: 1. Convention on the Unification of Certain Elements of Invention Patent Law, made in Strasbourg on 27 November 1963; 2. Patent Cooperation Treaty and Implementing Regulations, made in Washington on 19 June 1970; 3. Convention on the Grant of European Patents (European Patent Convention), Implementing Regulations and Four Protocols, made in Munich on 5 October 1973; 4. European Patent Convention for the Common Market (Community Patent Convention), and Implementing Regulations, made in Luxembourg on 15 December 1975, last amended by the Act of 10 January 2011 referred to above;
- Article 53 of the Act of 10 January 2011 of the Implementation of the Treaty on the Law of Invention Patents and the Act Revisioning the Convention on the Grant of European Patents, and amending various provisions in respect of invention patents;
- the Act of 10 January 2011 on the Protection of Plant Breeding (not entered into force);
- the Act of 30 June 1994 on copyright and neighbouring rights, last amended by the Act of 30 December 2009 on various provisions;
- the law of March 25, 1999 concerning the application to the Belgians of certain provisions of the Bern Convention for the Protection of Literary and Artistic Works of September 9, 1886, supplemented in Paris on May 4, 1896, revised in Berlin on November 13, 1908, completed in Bern on March 20, 1914 and revised in Rome on June 2, 1928, in Brussels on June 26, 1948, in Stockholm on July 14, 1967 and in Paris on July 24, 1961
- the law of 15 May 2006 on the application to the Belgians of certain provisions of the Treaty of the World Intellectual Property Organization (WCT), adopted in Geneva on 20 December 1996, and the Treaty of the World Intellectual Property Organization on Interpretations and Executions and Phonograms (WPPT) adopted in Geneva on 20 December 1996;
- the law of 30 June 1994 transposing into Belgian law the European directive of 14 May 1991 concerning the legal protection of computer programmes, last amended by the law of 15 May 2007 on the suppression of counterfeiting and piracy of intellectual property rights;
- the Act of 31 August 1998 transposing into Belgian law the European Directive of 11 March 1996 on the legal protection of databases, last amended by the Act of 8 June 2008 on various provisions (I);
- the Act of 10 January 1990 concerning the legal protection of semiconductor topography, as amended lastly by the Act of 10 May 2007 on aspects of judicial law of the protection of intellectual property rights;
- the law of 15 May 2007 on the suppression of counterfeiting and piracy of intellectual property rights, last amended by the Law of 10 January 2011 on the Protection of Plant Breeding (not entered into force),
The King shall determine the date of repeal of each of the provisions of the laws referred to in the first paragraph.
§ 3. The legal provisions not contrary to the provisions of Books I, XI, XV and XVII of this Code, which refer to provisions of laws referred to in paragraph 2, paragraph 1^er, are presumed to refer to the equivalent provisions of Books I, XI, XV and XVII of the Code.
§ 4. The regulatory arrangements for the enforcement of the laws referred to in paragraph 2, paragraph 1^er, not contrary to the provisions of Books I, XI, XV and XVII of this Code shall remain in force until they are repealed or replaced by decrees carried out in accordance with Books I, XI, XVI and XVII of the Code.
CHAPTER VI. - Jurisdiction
Art. 33. The King may replace references in existing laws or decrees to the provisions referred to in section 32 with references to the equivalent provisions of the Economic Law Code, as set out in this Act.
Art. 34. The King may coordinate the provisions of the Economic Law Code, as set out in this Act, with the provisions that would have expressly or implicitly amended them at the time the coordination is established.
To this end, He may:
1° amend the order, numbering and, in general, the presentation of the provisions to be coordinated;
2° amend the references contained in the provisions to be coordinated with a view to aligning them with the new numbering;
3° amend the drafting of the provisions to be coordinated in order to ensure their consistency and to unify the terminology without prejudice to the principles set out in these provisions.
CHAPTER VII. - Transitional provisions
Section 1^re. - Patents of invention and additional protection certificates
Art. 35. § 1^er. The applications for patents and supplementary protection certificates filed prior to the entry into force of Divisions 1 and 2 of Book XI of the Economic Law Code, as set out in this Act, shall be processed in accordance with the provisions applicable at the time of filing.
§ 2. The provisions of Articles 1 and 2 of Book XI of the Economic Law Code, as set out in this Act, apply immediately to patents and additional protection certificates issued prior to their entry into force, but with the maintenance of rights acquired at the time of their entry into force.
§ 3. The provisions of Articles XI.48, XI.77, XI.79, XI.50, § 3, XI.53, paragraph 2, and XI.80 of the Economic Law Code, as set out in this Law, apply to patents requested or granted before the entry into force of Title 1^er of book XI above.
The provisions of Articles XI.101 and XI.102 of the Economic Law Code, as set out in this Act, apply to additional protection certificates requested or issued prior to the entry into force of Title 2 of Book XI referred to above.
The King sets the rate, time and method of collection of annual fees due to the maintenance of patent applications, requests for additional protection certificates, patents and additional protection certificates referred to in paragraphs 1 and 2.
Art. 36. Articles XI.82 to XI.90 of the Economic Law Code, as set out in this Law, apply to all European patent applications filed after their entry into force and to European patents granted on the basis of these applications.
Without prejudice to the decisions of the Governing Council of the European Patent Organisation made under Article 7, § 1^er, second sentence, and § 2, of the Revision of the Convention on the Grant of European Patents (European Patent Convention) of 5 October 1973, last revised on 17 December 1991, made in Munich on 29 November 2000, articles XI.82 to XI.90 do not apply to European patents already granted at the time of their entry into force, nor to European patent applications pending at that date.
Section 2. - Right to obstruct
Art. 37. § 1^er. Claims for the right of enforcer filed prior to the entry into force of Title 3 of Book XI of the Economic Law Code, as set out in this Act, shall be processed in accordance with the provisions applicable at the time of filing.
§ 2. The provisions of Title 3 of Book XI of the Economic Law Code, as set out in this Act, shall apply immediately to the rights of obstructors granted prior to their entry into force, but shall maintain the rights acquired at the time of the entry into force of these provisions.
§ 3. The provisions of Articles XI.150 and XI.151 of the Economic Law Code, as set out in this Act, are applicable to the obstructor rights requested or granted prior to the entry into force of Title 3 of Book XI referred to above.
Art. 38. Notwithstanding Article XI.109, § 1^er, 1°, and without prejudice to Article XI.109, §§ 2 and 3, of the Economic Law Code, as set out in this Law, a variety is also considered as new in cases where various constituents or crop materials of these constituents have not been sold or disposed of to third parties by the breeder or with his consent, in Belgian territory, for the purposes of the more This provision applies if the date of application is within one year of the date of entry into force and provided that the variety belongs to a plant species other than those listed in the Royal Order of 1^er October 1993 determines plant species for which a certificate of obtaining may be issued and setting the duration of protection for these species.
Art. 39. Article XI.114, § 1^er, 1°, of the Economic Law Code, as set out in this Act, does not apply to essentially derived varieties of which the breeder shall, before the date of entry into force of Title 3 of Book XI of the Economic Law Code, as set out in this Act, make effective and serious preparations for their operation, or that the breeder shall have operated before that date.
Section 3. - Copyright
Art. 40. § 1^er. The provisions of Title 5 of Book XI of the Economic Law Code, as set out in this Act, apply to works and benefits realized prior to their entry into force and not in the public domain at that time.
§ 2. These provisions also apply to works and benefits that, at 1^er July 1995, are protected by copyright in at least one Member State of the European Union.
However, the rebirth of rights cannot be opposed to persons who have undertaken in good faith the exploitation of works or services that belonged to the public domain before 1^er July 1995, to the extent that they continue the same operating modes.
§ 3. Article XI.166, § 2, paragraph 3, of the Economic Law Code, as set out in this Act, applies to musical compositions with words for which, at a minimum, the composition of music or words are protected in at least one Member State of the European Union on 1^er November 2013 as well as those that are after that date.
§ 4. Articles XI.208, paragraph 2, XI.209, § 1^er, and XI.210, of the Economic Law Code, as set out in this Act, apply to performance fixations and phonograms in respect of which the performer or performer and the producer of phonograms are still protected on the date of 1^er November 2013, as well as the executions and phonograms that are after that date.
Paragraph 1^er shall not prejudice the rights acquired under the law or the effect of legal acts or the acts of exploitation performed before 1^er November 2013.
If the publication to the Belgian Monitor of Articles XI.208, XI.209, XI.210, of the Economic Law Code, as set out in this Act, and of this Article shall take place after October 31, 2013, the seventy-year time limits set out in these Articles shall not be invoked in respect of persons who exploit in good faith phonograms whose protection period expires before 1^er November 2013, during the period between 1^er November 2013 and the date of publication to the Belgian Monitor of the above-mentioned articles XI.208, XI.209, XI.210, and of this article.
In the absence of a clear indication in the contract, a contract of assignment entered into before 1^er November 2013 is deemed to continue to produce its effects beyond the date on which, pursuant to section 38 or 39, in its version in force on October 30, 2011, the rights of the performer or performer would no longer be protected.
Contracts for assignment under which an artist-interpreter or performer is entitled to recurring payments and which were entered into before 1^er November 2013 may be modified beyond the fiftieth year after the phonogram has been published lawfully or, in the absence of this publication, the fiftieth year after it has been published lawfully to the public.
Art. 41. The provisions of Title 5 of Book XI of the Economic Law Code, as set out in this Act, do not prejudice the rights acquired under the law or the effect of legal acts or the acts of exploitation carried out prior to their entry into force.
Art. 42. § 1^er. Contracts for the operation of protected works and benefits, effective on the date of 1^er August 1994, are subject to sections XI.218 and XI.219 of the Economic Law Code, as set out in this Act, from the date of entry into force of these sections if they expire after that date.
§ 2. When an international co-production contract entered into before 1^er January 1995 between a co-producer of a Member State of the European Union and one or more co-producers of others Member States or third countries expressly provide for a regime of distribution between co-producers of operating rights by geographic areas for all means of communication to the public without distinction, the regime applicable to the communication to the public by satellite of the provisions applicable to other means of communication, and in the case where the communication to the public by satellite of the co-production would prejudice the exclusivity, including linguistics, of a co-producer or its assignees on a specified territory
§ 3. The provisions of Title 5 of Book XI of the Economic Law Code, as set out in this Act, do not affect the contracts of representation entered into by corporations, as set out in Title 5, or contracts entered into between them and third parties, under the precondition of previous laws.
This provision is applicable only to the extent that these companies have applied for the authorization referred to in Article XI.252 of the Economic Law Code, as set out in this Act, within six months of the coming into force of the royal decree referred to in this section.
Art. 43. Without prejudice to the obligation to comply with the obligations set out in Title 5 of Book XI of the Code of Economic Law, as set out in this Act, the authorizations given by the Minister prior to the entry into force of Article XI.252 of the above-mentioned Code, shall remain in force except for their withdrawal in accordance with that section.
Art. 44. The Minister shall submit to Parliament on 31 December 2015 a report on the evaluation of articles XI.182, XI.183 and XI.206 of the Economic Law Code, as set out in this Act, in particular on the position of the authors and artists-interpreters or performers and their management companies vis-à-vis, on the one hand, producers and, where appropriate, their management companies and, on the other, broadcasting operators In particular, this report may submit proposals to Parliament to ensure an optimal balance between the various categories of stakeholders mentioned above.
Section 4. - Computer programs
Art. 45. The provisions of Title 6 of Book XI of the Economic Law Code, as set out in this Act, also apply to computer programs created prior to their entry into force.
These provisions do not prejudice the rights acquired under the law or the effect of legal acts or the acts of exploitation carried out prior to this entry into force.
Section 5. - Databases
Art. 46. The provisions of heading 7 of Book XI of the Economic Law Code, as set out in this Act, apply to databases completed after December 31, 1982.
In the case of a database completed between 1^er January 1983 and 31 December 1997^er January 1998 fulfils the conditions for the protection provided by the provisions of Title 7 of Book XI of the Economic Law Code, as set out in this Act, the duration of the protection of this database is fifteen years from 1^er January 1998.
Art. 47. The provisions of Title 7 of Book XI of the Economic Law Code, as set out in this Act, shall not prejudice the rights acquired under the law or the effect of legal acts or the acts of exploitation carried out prior to their entry into force.
Section 6. - Topography of semiconductor products
Art. 48. The provisions of Title 8 of Book XI of the Economic Law Code, as set out in this Act, apply only to the topography of semiconductor products fixed or coded for the first time after the entry into force of the Act of 10 January 1990 concerning the legal protection of semiconductor topography.
CHAPTER VIII. - Entry into force
Art. 49. With the exception of this article, article 32, paragraph 2, and article 44, which come into force on the day of the publication of this Act in the Belgian Monitor, the King shall determine the date of entry into force of all or part of each of the articles of this Act and of each of the provisions inserted by this Act in the Economic Law Code.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 19 April 2014.
PHILIPPE
By the King:
Minister of Economy and Consumers,
J. VANDE LANOTTE
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1)
Note
House of Representatives:
(www.lachambre.be)
Documents: 53-3391 and 53-3392 - 2013/2014
Full report: 27 March 2014.
Senate:
(www.senate.be)
Documents: 5-2805 and 5-2806 - 2013/2014.
Annales of the Senate: April 3, 2014.

Law On The Integration Of Book Xi 'intellectual Property' In The Code Of Economic Law, And Bearing Insertion Of Definitions Specific To The Book Xi In Books I, Xv And Xvii Of The Code (1)

Original Language Title: Loi portant insertion du livre XI "Propriété intellectuelle" dans le Code de droit économique, et portant insertion des définitions propres au livre XI dans les livres I, XV et XVII du même Code (1)

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19 AVRIL 2014. - An Act to insert Book XI "Intellectual property" into the Economic Law Code, and to incorporate the definitions specific to Book XI into Books I, XV and XVII of the same Code (1)

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