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22 MAI 2005. - Act transposing the European Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright and neighbouring rights in the information society (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - Preliminary provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
It transposes the provisions of Directive 2001/29/EC of the European Parliament and the Council of 22 May 2001 on the harmonization of certain aspects of copyright and neighbouring rights in the information society.
CHAPTER II. - Amendments to the Act of 30 June 1994 on copyright and neighbouring rights
Art. 2. Article 1^er of the Act of 30 June 1994 on copyright and neighbouring rights, the following amendments are made:
(a) § 1^erParagraph 1^er, is completed as follows: ", whether direct or indirect, provisional or permanent, in whole or in part";
(b) § 1^er, paragraph 4, is supplemented as follows: ", including by making available to the public so that everyone can have access to the place and at the time he chooses individually";
(c) § 1^er is supplemented by the following paragraphs:
"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 Community by the author or with his consent, exhausts the right of distribution of this original or that copy in the European Community. »
Art. 3. Section 21 of the Act is replaced by the following provision:
“Art. 21. § 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. 4. In section 22 of the Act, as amended by the Acts of 3 April 1995 and 31 August 1998, the following amendments are made:
(a) § 1^er, 3°, is replaced as follows:
"3° free and private execution carried out in the family circle or in the context of school activities; »;
(b) § 1^er, 4°, is replaced by the following provision:
"4° the fragmentary or integral reproduction of articles or plastic works 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; »;
(c) § 1^er, 4°bis, is replaced by the following provision:
"4°bis. the fragmentary or integral reproduction of articles or plastic works 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 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 affect the normal exploitation of the work less, »;
(d) § 1^er, 4°ter, is replaced by the following provision:
"4°ter. the fragmentary or integral reproduction of articles or plastic works or that of short fragments of other works, when this reproduction is carried out on any medium other than on paper or similar medium, using any photographic technique or any other method producing a similar result, for the purpose of illustrating the teaching or scientific research to the extent justified by the non-profit pursued and does not affect the normal exploitation of »;
(e) in § 1^er, is inserted a 4°quater reading as follows:
"4°quater. 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, is carried out only by means of closed transmission networks of the institution and does not affect the normal exploitation of the work, »;
(f) § 1^er, 5°, is replaced by the following provision:
"5° the reproduction on any medium other than on paper or similar support, of works, carried out in the family circle and reserved for it; »;
(g) § 1^er, 8°, is replaced by the following provision:
"8° 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; »;
(h) § 1^er is supplemented by the following:
"9° the communication, including by making available to individuals, for private research or study, works that are not offered for sale or subject to licensing conditions, and which 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;
10° Ephemeral recordings of works carried out by broadcasting organizations for their own programs and by their own means, including by means of persons acting on their behalf and under their responsibility;
11° 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;
12° 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;
13° 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 residing there. »
( i ) § 2 is replaced by the following provision:
“§2. Reproduction and communication to the public of the work in the event of news events in accordance with § 1^er, 1°, must be justified by the purpose of information pursued, and the source, including the author's name, must be mentioned, unless it proves impossible. »
Art. 5. Article 22bis, § 1^erParagraph 1^erthe same Act, which was inserted by the Act of 31 August 1998, are amended as follows:
(a) 1° is replaced by the following provision:
"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; »;
(b) 2° is replaced by the following provision:
"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; »;
(c) the 3° is replaced by the following provision:
"3° the fragmentary or integral reproduction on any material 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; »;
(d) the 4th is replaced by the following provision:
"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; "
Art. 6. Article 22bis, § 2, of the same law, inserted by the law of 31 August 1998, is supplemented as follows:
"unless this is impossible. »
Art. 7. Section 23bis of the Act, inserted by the Act of 31 August 1998, is supplemented as follows:
"It may, however, be contractually derogated from the provisions referred to in paragraph 1^er when it comes to works that are made available to the public at the request according to the contractual provisions so that everyone can have access to the place and at the time he chooses individually. »
Art. 8. The following amendments are made to section 35 of the Act:
(a) § 1^erParagraph 1^er, is completed as follows:
", whether direct or indirect, provisional or permanent, in whole or in part. »;
(b) § 1^er, paragraph 3, is supplemented by the following: ", including by making available to the public so that everyone can have access to the place and at the time he chooses individually. »;
(c) § 1^er, paragraph 4, is replaced by the following paragraph:
"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 Community, of the reproduction of his performance by the artist-interpreter or executing or with his consent. »
Art. 9. The following amendments are made to section 39 of the Act:
(a) paragraph 1^er is completed as follows:
", whether direct or indirect, provisional or permanent, in whole or in part. »;
(b) paragraph 3 is replaced by the following paragraph:
"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 Community, of the reproduction of its benefit by the producer or with its consent. »;
(c) paragraph 4 is supplemented as follows: ", including by making available to the public so that everyone can have access to the place and at the time he chooses individually. »;
(d) in paragraph 5, in the first sentence, the words "phonograms or" and, in the second sentence, "phonogram or" are deleted;
(e) the following paragraph shall be inserted between paragraphs 5 and 6:
"The rights of phonogram producers expire fifty years after fixation. However, if the phonogram was the subject of a lawful publication during this period, the rights expire fifty 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 fifty years after the date of the first lawful communication to the public. »
Art. 10. The following amendments are made to section 44 of the Act:
(a) in paragraph 1^er, the words "The written agreement of the broadcasting organization is required to perform the following acts" are replaced by the words "The broadcasting organization has the right to authorize:"
(b) in paragraph 1^er, b), the words "that it be direct or indirect, provisional or permanent, in whole or in part" are inserted between "by any process" and "including the distribution of fixations of its emissions; »;
(c) paragraph 1^er is supplemented by the following provision:
"(d) making available to the public the fixation of its emissions so that everyone can have access to it from the place and at the time he chooses individually. »;
(d) paragraph 2 is replaced by the following paragraph:
"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 Community of the fixing of its programming by the broadcasting organization or with its consent. »
Art. 11. In section 46 of the Act, as amended by the Acts of 3 April 1995 and 31 August 1998, the following amendments are made:
(a) 1° is replaced by the following provision:
"1° the quotes 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; »;
(b) 3°bis is replaced by the following provision:
"3°bis. the reproduction of short fragments of a benefit when this reproduction is performed on any medium, for the purpose of illustrating teaching or scientific research to the extent justified by the non-profit purpose pursued and does not prejudice the normal exploitation of the benefit; »;
(c) a 3ter is inserted as follows:
"3°ter. the communication of benefits where such communication is carried out for the purpose of illustrating the teaching or scientific research by institutions recognized or formally organized for that purpose by the public authorities and provided that such communication is justified by the non-profit purpose pursued, is within the framework of the normal activities of the institution, be carried out only by means of closed transmission networks of the institution and does not affect the normal operation of the benefit; »;
(d) the 4th is replaced by the following:
"4° the reproduction on any support other than on paper or similar support, of benefits of the rights holders, carried out in the family circle and reserved for it; »;
(e) between 4° and 5°, a 4°bis is added as follows:
"4°bis. 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 of a benefit,
and have no independent economic significance; »;
(f) the 7° is replaced by the following provision:
"7° 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; »;
(g) the article shall be supplemented by the following provisions:
"8° 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;
9° Ephemeral recordings of benefits made 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;
10° 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;
11° 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;
12° 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. 12. Section 47bis of the Act is supplemented by the following provision:
"It may, however, be contractually derogated from the provisions referred to in paragraph 1^er when it comes to benefits that are made available to the public at the request according to the contractual provisions so that everyone can have access to the place and at the time he chooses individually. »
Art. 13. The title of Chapter IV of the Act is replaced by the following title:
“Chapter IV. - Private copy of works and benefits »
Art. 14. Section 55 of the Act is replaced by the following provision:
"Art. 55. Authors, performers or performers, publishers of literary works and photographic works and producers of phonograms and audiovisual works are entitled to remuneration for the private reproduction of their works and services, including in the cases set out in articles 22, § 1^er, 5° and 13° and 46, 4° and 12°.
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 in the national territory of such devices and devices.
According to the terms provided for in Article 56, 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.
Subject to international conventions, remuneration shall be apportioned in accordance with Article 58, by rights management societies, between authors, performers or performers, publishers of literary works and photographic works 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.
This right to obtain fair remuneration cannot be waived by the authors or performers or performers.
The right to remuneration referred to in paragraph 1^er the presumption referred to in articles 18 and 36.
It is established with the Federal Public Service with copyright in its powers, a Community Consultation Commission interested in remuneration for private copy.
The King shall determine, by order deliberately in the Council of Ministers, the composition, terms and conditions of appointment of its members and the organization and operation of the Commission for Consultation of Interested Communities.
The Commission meets at least twice a year. It provides an annual report to the King on its activities, particularly with regard to the evolution of the copy phenomenon and the technical measures referred to in Article 79bis. The King shall transmit this report without delay to the House of Representatives and to the Senate. »
Art. 15. Section 56 of the Act is replaced by the following provision:
"Art. 56. At the request of the Minister or of any of its members, the consultation committee of the interested media shall give notice to the King concerning the status of the devices and materials referred to in section 55 and the related remuneration. Where appropriate, this notice specifies the different opinions of the members of the commission.
The Board's opinion is rendered within six months of its referral. After this period, he is presumed to be rendered.
Within three months of the communication of the notice, the King determines, by categories of materials and technically similar devices that He defines, if they are manifestly used for the private reproduction of works and services on any medium other than on paper or similar medium and sets out the modalities for the collection, distribution and control of remuneration and the time when it is due.
Within the same period, 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 other than paper or similar medium and that are not subject to remuneration for private copy.
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 the preceding paragraph by a royal decree deliberated in the Council of Ministers.
At the same time as it determines the status of devices and supports, and after the advice of the Commission of Interested Environments, the King sets by royal decree deliberated in the Council of Ministers the remuneration referred to in Article 55.
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 Article 79bis 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, it may be revised more quickly.
To this end, only the King seizes the commission of interested media, which renders a notice within the time limits referred to in paragraph 2. 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 section 55. »
Art. 16. In section 57 of the Act, the following amendments are made:
(a) paragraph 1^er is completed as follows:
"6° to hospital, penitentiary and youth-assisted institutions. »
(b) the item is completed as follows:
"In addition, after the advice of the commission of interested circles, 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 computers they acquired;
2° for which the compensation payables referred to in section 55 are exempted or repaid in whole or in part for computers acquired by these 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° is by the need to guarantee the acquisition of computers by persons who obviously do not devote this material to the reproductions referred to in Article 55.
The King determines the conditions of reimbursement or exemption. »
Art. 17. § 1^er is replaced by the following provision:
« § 1^er. With respect to compensation referred to in section 55, the King may determine the distribution key between the following categories of work:
(1) literary works;
(2) photographic works;
(3) sound works;
4) audiovisual works.
The portion of the remuneration referred to in section 55, relating to audio and audiovisual works, shall be divided by third parties between authors, performers or performers and producers.
Part of the remuneration referred to in Article 55, relating to literary works and photographic works, is divided by half between authors and publishers. »
Art. 18. The title of Chapter V of the Act is replaced by the following title:
"Chapter V. - Reproduction on paper or on a similar medium of works for a private purpose or for purposes of illustration of teaching or scientific research"
Art. 19. Section 59 of the Act is replaced by the following provision:
"Art. 59. 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 22, § 1^er, 4° and 4°bis, 22bis, § 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.
According to the terms provided for in Article 61, the King determines which devices are clearly used for reproduction on paper or on a similar medium of works.
The King may set 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.
It is established with the Federal Public Service with copyright in its functions, a Commission for Consultation of Interested Areas of Remuneration for Reprography.
The King shall determine, by order deliberately in the Council of Ministers, the composition, terms and conditions of appointment of its members and the organization and operation of the Commission for Consultation of Interested Communities.
The Commission meets at least twice a year. She submits an annual report to the King on her activities, particularly with regard to the evolution of the phenomenon of reprography and the technical measures referred to in article 79bis. The King shall transmit this report without delay to the House of Representatives and to the Senate. »
Art. 20. Section 61 of the Act, as amended by the Act of 3 April 1995, is replaced by the following provision:
"Art. 61. At the request of the Minister or one of its members, the Committee for Consultation of Interested Areas shall give notice to the King regarding the status of the devices referred to in section 59 and the remuneration referred to in sections 59 and 60. Where appropriate, this notice specifies the different opinions of the members of the commission.
The Board's opinion is rendered within six months of its referral. After this period, he is presumed to be rendered.
Within three months of the communication of the notice, the King determines, by categories of technically similar apparatus that He defines, whether they are manifestly used for the reproduction on paper or similar support of works and sets out the modalities for the collection, distribution and control of remuneration and the time when it is due.
Within the same period, the King may determine, on a specific list, the categories of technically similar apparatus that are not clearly used for the reproduction of works on paper or similar medium 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.
Subject to international conventions, the remuneration provided for in articles 59 and 60 shall be attributed equally to the authors and publishers.
According to the conditions and terms and conditions that He sets, the King shall appoint a representative company of the 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, it may be revised more quickly.
To this end, only the King seizes the commission of interested media, which renders a notice within the time limits referred to in paragraph 2. The King, if he revises the amount endeaned for the three-year period, motivates his decision by changing the initial conditions. »
Art. 21. In section 61bis of the Act, inserted by the Act of 31 August 1998, the following amendments are made:
(a) paragraph 1^er is replaced by the following provision:
"The authors and publishers of works are entitled to compensation because of their reproduction and communication under the conditions laid down in articles 22, § 1^er§ 1^erThree. »;
(b) Paragraph 3 is replaced by the following provision:
"Artists and 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 46, 3°bis and 3°ter. »
Art. 22. Section 61quater of the Act, inserted by the Act of 31 August 1998, is replaced by the following provision:
"Art. 61quater. The remuneration referred to in Article 61bis 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. »
Art. 23. Article 62, § 1^er, a single paragraph of the Act, as amended by the Act of 31 August 1998, is replaced by the following provision:
« § 1^er. In case of lending of literary works, databases, photographic works or scores of musical works under the conditions defined in article 23, the author and the publisher are entitled to remuneration. »
Art. 24. Article 64, § 1^er, of the same law, is supplemented as follows: "and publishers up to 70% for authors and 30% for publishers. »
Art. 25. It is inserted in chapter VIII of the Act, after section 79, section 1^erbis, as follows:
“Section 1^erbis. - Legal protection of technical measures and information on the rights regime. »
Art. 26. Article 79bis, as follows, is inserted in the same law:
"Art. 79bis. § 1^er. Any person who circumvents any effective technical measure, 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 sections 80 and 82, is guilty of an offence that is punishable under sections 81 and 83 to 86. The circumvention of the technical measures applied, in accordance with or under this Article or in accordance with Article 87bis, § 1^er, shall be deemed to facilitate the commission of offences under sections 80 and 82.
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 designed to allow or facilitate the contouring of the protection of any effective technical measures,
is guilty of an offence which is punishable under articles 81 and 83 to 86.
The provisions of Book I^er the Criminal Code, including Chapter VII and Article 85, shall apply to offences referred to in paragraphs 1^er and 2.
"Technical measures" means any technology, device or component that in the normal course of operation is intended to prevent or limit in respect of works or services, acts not authorized by copyright holders or neighbouring rights holders.
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 rights holders shall 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 21, paragraph 2, in article 22, 1^er, 4°, 4°bis, 4°ter, 8°, 10° and 11°, in article 22bis, § 1^erParagraph 1^er, 1° to 5°, and in article 46, 3°bis, 7°, 9° and 10°, when it has legal access to the work or service protected by technical measures.
The King, by order deliberately in the Council of Ministers, may, under conditions fixed by him, extend to articles 22 § 1^er, 5°, and 46, 4°, 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. § 2 does not apply to works and benefits that are made available to the public at the request according to 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 § 1^er cannot prevent legitimate purchasers from protected works and benefits from using these works and benefits in accordance with their normal destination. »
Art. 27. Article 79ter, as follows, is inserted in the same law:
"Art. 79ter. § 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 to the public of works or services, and whose information on the rights regime in electronic form has been deleted or amended without authorization,
knowing or having valid reasons to believe that, in doing so, it causes, permits, facilitates or conceals an infringement of a copyright or a neighbouring right, is guilty of an offence which is punishable under articles 81 and 83 to 86.
The provisions of Book I^er the Criminal Code, including Chapter VII and Article 85, are applicable to this offence.
§ 2. For the purposes of this article, "information on the rights regime" means any information provided by rights holders that allows to identify 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. »
Art. 28. In section 81 of the Act, the following amendments are made:
(a) the words "The offences provided for in Article 80" are replaced by the words "The offences provided for in Articles 79bis, § 1^er, 79ter and 80";
(b) the words "Any recidivism in respect of offences under section 80" are replaced by the words "Any recidivism in respect of offences under section 79bis, 79ter and 80".
Art. 29. It is inserted in Chapter VIII of the Act, after section 87, a 3bis section, as follows:
"Section 3bis. - Actions related to the application of technical protection measures. »
Art. 30. An article 87bis, as follows, is inserted in the same law:
"Art. 87bis. § 1^er. Notwithstanding the legal protection provided for in Article 79bis, the President of the Court of First Instance is competent to:
1° see any violation of Article 79bis, §§ 2 and 5 and as the case may be:
2° be directed to the persons entitled to take the necessary measures allowing the beneficiaries of the exceptions provided for in Article 21, § 2, to Article 22, § 1^er, 4°, 4°bis, 4°ter, 8°, 10°, 11° and 13°, in article 22bis, § 1^erParagraph 1^er, 1° to 5°, and in Article 46, 3°bis, 7°, 9°, 10° and 12°, or the provisions determined by the King under Article 79bis, § 2, paragraph 2, to benefit from the said exceptions to the extent necessary to benefit from them when the beneficiary has lawful access to the work or the protected benefit.
3° be directed to persons entitled to render technical protection measures in accordance with Article 79bis, § 5.
§ 2. Action based on § 1^er is trained upon request:
1° of interested persons;
2° of the Minister having the copyright in his powers;
3° of a professional or interprofessional group with civil personality;
4° of an association whose purpose is to defend the interests of consumers and to enjoy the civil personality provided that it is represented on the Consumer Council or that it is approved by the Minister who has the right of author in his duties according to criteria determined by royal decree deliberated in the Council of Ministers.
By derogation from the provisions of articles 17 and 18 of the Judicial Code, the associations and groups referred to in points 3 and 4 may act in court for the defence of their statutoryly defined collective interests.
§ 3. The action referred to in § 1^er is formed and educated according to the forms of the referee.
It may be filed by contradictory request in accordance with articles 1034ter to 1034sexies of the Judicial Code.
The President of the Court of First Instance may order the notice of the order or summary that he or she prepares during the period that he or she determines both within and outside the institutions of the offender and at the costs of the offender, as well as the publication of the order or summary at the expense of the offender through the newspapers or in any other manner.
The order is enforceable by provision notwithstanding any appeal, and without bail.
Any decision shall, in the eighties, and the due diligence of the Registrar of the competent court, be communicated to the Minister having the right of author in his powers unless the decision has been made at his request. In addition, the Clerk is required to promptly inform the Minister who is entitled to the copyright of the appeal against any decision made under this section. »
CHAPTER III. - Amendments to the Act of 31 August 1998 transposing into Belgian law the European Directive of 11 March 1996 on the legal protection of databases
Art. 31. Article 11 of the Act of 31 August 1998 transposing into Belgian law the European Directive of 11 March 1996 on the legal protection of databases is supplemented as follows:
"It may, however, be contractually derogated from the provisions of Article 7 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 he chooses individually. »
Art. 32. It is inserted in Chapter II of the Act, after section 12, a 5bis section, as follows:
"Section 5bis. - Legal protection of technical measures and information on the rights regime. »
Art. 33. An article 12bis, as follows, is inserted in the same law:
"Art. 12bis. § 1^er. Any person who circumvents any effective technical measure, knowing or having valid reasons to think about it, is guilty of an offence that is punishable under articles 14 to 17.
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 designed to allow or facilitate the contouring of the protection of any effective technical measures,
is guilty of an offence which is punishable under articles 14 to 17.
The provisions of Book I^er the Criminal Code, including Chapter VII and Article 85, shall apply to offences referred to in paragraphs 1^er and 2.
"Technical measures" means any technology, device or component that in the normal course of operation is intended to prevent or limit in respect of databases, acts not authorized by database producers.
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 means necessary to be able to benefit from the exceptions provided for in Article 7, paragraph 1^er, 2° and 3°, when it has legal access to the database protected by technical measures.
§ 3. The technical measures applied voluntarily by the producers of databases, including those implemented under voluntary agreements, as well as the technical measures implemented under an order made pursuant to article 2bis of the law 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 § 1^er.
§ 4. § 2 does not apply to databases that are made available to the public at the request according to 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 § 1^er cannot prevent legitimate database acquirers from using these databases in accordance with their normal destination. »
Art. 34. Article 12ter, as follows, is inserted in the same law:
"Art. 12ter. § 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 to the public of databases, and whose information on the rights regime in electronic form has been deleted or amended 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 which is punishable under articles 14 to 17.
The provisions of Book I^er the Criminal Code, including Chapter VII and Article 85, are applicable to this offence.
§ 2. For the purposes of this article, "information on the rights regime" means any information provided by database producers that identifies 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. »
Art. 35. In section 14 of the Act, the following amendments are made:
(a) in paragraph 1^er, the words "The offences provided for in Article 13" are replaced by the words "The offences provided for in Articles 12bis, § 1^er12ter and 13";
(b) in paragraph 2, the words "All recidivism in respect of one of the offences provided for in section 13" are replaced by the words "All recidivism in respect of one of the offences provided for in articles 12bis, 12ter and 13".
CHAPTER IV. - Amendments to the law of 10 August 1998 transposing into Belgian judicial law the European directive of 11 March 1996 on the legal protection of databases
Art. 36. An article 2bis, as follows, is inserted in the law of 10 August 1998 transposing the European Directive of 11 March 1996 on the legal protection of databases into Belgian judicial law:
"Art. 2bis. § 1^er. Notwithstanding the legal protection provided for in article 12bis of the Act of 31 August 1998 transposing in Belgian law the European Directive of 11 March 1996 on the legal protection of databases, the President of the Court of First Instance is competent to:
1° see any violation of article 12bis, §§ 2 and 5 of the law of 31 August 1998 transposing in Belgian law the European directive of 11 March 1996 concerning the legal protection of databases, and as the case may be:
2° be directed to database producers to take the necessary measures to allow beneficiaries of the exceptions provided for in Article 7, paragraph 1^er, 2° and 3°, of the Act of 31 August 1998 transposing the European Directive of 11 March 1996 on legal protection of databases, to the extent necessary to benefit from such exceptions when the beneficiary has legal access to the database;
3° be directed to the producers of databases to make the technical protection measures in accordance with Article 12bis, § 5, of the law of 31 August 1998 transposing the European Directive of 11 March 1996 on the legal protection of databases into Belgian law.
§ 2. Action based on § 1^er is trained upon request:
1° of interested persons;
2° of the Minister having the copyright in his powers;
3° of a professional or interprofessional group with civil personality;
4° of an association whose purpose is to defend the interests of consumers and to enjoy the civil personality provided that it is represented on the Consumer Council or that it is approved by the Minister who has the right of author in his duties according to criteria determined by royal decree deliberated in the Council of Ministers.
By derogation from the provisions of articles 17 and 18 of the Judicial Code, the associations and groups referred to in points 3 and 4 may act in court for the defence of their statutoryly defined collective interests.
§ 3. The action referred to in § 1^er is formed and educated according to the forms of the referee.
It may be filed by contradictory request in accordance with articles 1034ter to 1034sexies of the Judicial Code.
The President of the Court of First Instance may order the notice of the order or summary that he or she prepares during the period that he or she determines both within and outside the institutions of the offender and at the costs of the offender, as well as the publication of the order or summary at the expense of the offender through the newspapers or in any other manner.
The order is enforceable by provision notwithstanding any appeal, and without bail.
Any decision shall, in the eighties, and the due diligence of the Registrar of the competent court, be communicated to the Minister having the right of author in his powers unless the decision has been made at his request. In addition, the Clerk is required to promptly inform the Minister who is entitled to the copyright of the appeal against any decision made under this section. »
CHAPTER V. - Amendments to the Judicial Code
Art. 37. Article 587, paragraph 1^er, of the Judicial Code, inserted by the Act of 3 August 1992, is supplemented by the following provisions:
13° requests made pursuant to Article 87bis of the Law of 30 June 1994 on copyright and neighbouring rights;
14° requests filed in accordance with Article 2bis of the Law of 10 August 1998 transposing the European Directive of 11 March 1996 on the legal protection of databases into Belgian judicial law. "
CHAPTER VI. - Interpretive provision of article 63, paragraph 1^erof the Law of 30 June 1994 on Copyright and Neighbouring Rights
Art. 38. Article 63, paragraph 1^er, the Act of 30 June 1994 on copyright and neighbouring rights must be construed as allowing the King to determine the amount of remuneration referred to in section 62 of the Act, in particular on the basis of a package per person registered in a public loan institution.
CHAPTER VII. - Final provisions
Art. 39. The amendments made by section 9, (d) and (e), do not apply to phonograms for which the rights are extinguished as of 22 December 2002 pursuant to section 39, paragraph 5, of the Copyright and Neighbouring Rights Act of 30 June 1994, as drafted before its amendment by section 9, (d).
Art. 40. This Act comes into force on the day of its publication to the Belgian Monitor, with the exception of Articles 4, (b), (c) and (f), 11, (d), 14, 15, 17, 18, 19 and 20 which come into force on the date fixed by the King.
Promulgate this law, order that it be clothed with the seal of the State and published in the Belgian Monitor.
Given in Brussels on 22 May 2005.
ALBERT
By the King:
Minister of Economy, Foreign Trade and Science Policy,
Mr. VERWILHEN
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Notes
(1) Session 2003-2004
House of Representatives
Documents. - Bill No. 51-1137/1. - Amendments, No. 51-1137/2.
2004-2005
Documents. - Amendments, n^bones 51-1137/3 to 12. - Report, No. 51-1137/13. - Text adopted by the Commission, No. 51-1137/14. - Amendments, n^bones 51-1137/15. - Text adopted in plenary and transmitted to the Senate, No. 51-1137/16.
Full report. - 3 March 2005.
Senate
Documents. - Project referred to by the Senate, No. 3-1073/1. - Amendments, n^bones 3-1073/2 and 3. - Report, number 3-1073/4. - Text corrected by the commission, no. 3-1073/5. - Amendments, no. 3-1073/6. - Decision not to amend, No. 3-1073/7.
Annales of the Senate. - 14 April 2005.