Copyright exceptions in Belgium: what is allowed without permission?

The copyright provides authors with a number of exclusive rights over their creations, such as the right to reproduce, distribute and communicate the work to the public. In principle, these acts can be done only with the permission of the author (or copyright holder).

However, there are specific situations in which the user has the right to use copyrighted works without prior permission from the copyright holder. These are the exceptions to copyright sometimes called statutory licenses. To compensate for their existence, the legislature did introduce a right of remuneration for the author for certain exceptions.

Below we provide a brief overview of the main exceptions to copyright in Belgium, as set forth in Articles XI.189 to XI.192 of the Code of Economic Law.

General conditions of application

A number of conditions apply to the exceptions:

1. Exercise of the right of divulgence
   Most exceptions apply only to works "that have been lawfully disclosed". This refers to the right of divulgation, which gives the author the right to determine if and when his work is disclosed. A work can only be used under an exceptions if the author has already released the work.
2. Use from legal sources
   An exception may according to the Court of Justice be applied only to a work that comes from a legal source. This means that the work has been made available with the permission of the rights holder. Thus, the use of illegally obtained or distributed works can never fall under an exception.
3. Restrictive interpretation
   Copyright exceptions are listed exhaustively in the law and should be according to the Court of Justice to be interpreted strictly. Thus, an exception cannot be applied by analogy to cases not expressly named in the law. However, the exception should not be read too strictly; the useful effect of the exception must be according to the Court of Justice be preserved. Especially when the exception makes an application of a fundamental right (think freedom of information or expression), the court should According to the Court of Justitie a balancing of interests with the author's rights.
4. Imperative nature of the exceptions
   All exceptions to copyright in Belgium are mandatory in nature (Art. XI.193 WER). This means that they cannot be deviated from by contract. Even if an agreement (think standard license terms) contains clauses that exclude reliance on an exception, the exception remains in force and the clause is invalid.
5. The three-step test
   An invoked exception must satisfy the so-called three-step test (Art. XI.192/3 WER). This test requires the court to consider whether an invoked exception does not impair the normal exploitation of the work and does not unreasonably prejudice the legal interests of the right holder.

The specific exceptions

1. Quote Law

Quoting a copyrighted work is permitted under the following conditions:

• All works: All copyrighted works can be quoted from.
• Target: Quotations can only be (i) for the purpose of criticism, polemic, review or (ii) for the purpose of teaching or in the context of scientific research. This does not include use for commercial purposes.
• Size: The quotation must be limited in scope (a short excerpt from a text). However, a photograph can be fully "quoted" depending on the context.
• Fair professional practices: A quotation must be part of a larger whole to which it links back substantively and is according to the Court of Justice so always of secondary importance. Use of loose quotations is therefore not included here.
• Source: The source and author's name must be clearly stated unless this proves impossible.

2. Education and scientific research

For teaching and research, certain actions are allowed:

• No profit target: the use under this exception must be justified by the pursued nonprofit purpose.
• Reproductions: It is permitted to reproduce works in their entirety (photocopy, scan, print, download, etc.) for illustration in teaching or for scientific research. However, sheet music is excluded.
• Meditions: Educational institutions can display or play works (film, music, PowerPoint, etc.) both inside and outside its buildings.
• Digital environment: Educational and scientific institutions can make works available online to students, researchers and staff through secure digital environments.
• TDM: Research organizations can do text and data mining for scientific research on works to which they have lawful access.
• Childcare: Child care institutions can use works if it is within the scope of pedagogical activities.
• Source: The source and author's name must be clearly stated unless this proves impossible.
• Compensation law: To compensate for the existence of this exception, authors are entitled to a fee. This remuneration is collected by management company Reprobel and is a lump sum per enrolled student/student.

3. Private use

Making copies for private use of copyrighted works is permitted under the following conditions:

• Natural persons: Only physical persons can apply this exception for private purposes. Legal persons. Professional use or use by companies or governments is not covered by the exception.
• Sheet music excluded: Sheet music is not covered by the exception. All other works (music, film, photo, books etc.) may be reproduced in full (downloading, scanning, copying etc.)
• Compensation law: To compensate for the existence of the private copy exception, authors are entitled to remuneration. This remuneration is collected by management company Auvibel from the manufacturers and importers of devices and media apparently used for reproduction (tablets, cell phones, blank CDs and DVDs, external hard drives, etc.).

4. Photocopying for professional purposes

Under the so-called reprography exception, the following acts are permitted:

• Photocopy: Only reproductions from paper to paper are covered by this exception. Printing is therefore not covered by the exception.
• Articles and short excerpts: Under this exception, an entire article or an image of visual art (photograph, drawing, painting, etc.) can be photocopied in its entirety. For other works, only a short excerpt can be photocopied. Sheet music is excluded.
• Professional use: These photocopies can only be made by a sole proprietor in the context of professional activities or by a legal entity (bv, nv, government institution) for internal use.
• Compensation law: To compensate for the existence of the private copy exception, authors are entitled to remuneration. This remuneration is collected by management company Reprobel among those who make copies or provide a copier to others.

5. Parody, caricature and pastiche

The use of a protected work in a parody, caricature or pastiche is permitted, provided:

• Differences: There must be clear differences from the imitated work. Thus, the protected work may not simply be copied. This does not mean, however, that the parody must have its own original character.
• Humor or ridicule: Parody must engage in humor or mockery.
• Balance of interests: There must be a fair balance between the interests of the author and the free speech of the creator of the parody. This is according to the Court of Justice for example, not the case of discrimination based on race, skin color and ethnicity.
• Integrity Law: In Belgium, it is also sometimes stated that the moral integrity right must not have been violated and the parody must not damage the author's honor or good name or mutilate his work.

6. Use by heritage institutions

Heritage institutions have the right, under certain conditions, to use works

• Heritage Institution: Beneficiaries are publicly accessible libraries, publicly accessible museums, archives and cinematographic or audio (visual) heritage institutions.
• Preservation: Heritage institutions may make reproductions of works if justified by the purpose set for the preservation of the cultural and scientific patrimony (e.g. conservation and restoration)
• Access for research or private study: Heritage institutions may make works available digitally in their buildings via dedicated terminals for the benefit of persons who wish to consult these works for research or private study. However, the works must belong to their collection.
• Orphan works: Heritage institutions may digitize and make available online certain works (printed works, phonograms, films, but not (loose) photographs) of which the rights holder is unknown or untraceable. These works must belong to their collection. They must have conducted a diligent search to establish the orphan nature of the work.
• Out-of-commerce work: Heritage institutions may use works that are no longer on the market for non-commercial purposes. They must be works belonging to their collection. They must first negotiate a license (with extended effect) for this purpose with a representative management company. If such a management company has not been appointed, then use is permitted under an exception. Rightholders can opt out and have their works excluded from this regime.

7. Topical reporting

To safeguard freedom of the press and information, protected works may be used under certain circumstances:

• Topical reporting: Use is permitted in a report on a current event. Thus, it must respond to immediate current events.
• Information: The use must be for the purpose of information and justified from the point of view of information.
• Size: Works of visual art may be used in their entirety; of other works only short excerpts.
• Source: The source and author's name must be clearly stated unless this proves impossible.

8. Panorama

Works in publicly accessible places can be used under the following conditions:

• Type of works: Only works of visual, graphic or architectural art fall under this exception.
• Public place: It must be works made to be put permanently in a public place (art in private spaces or the interior of buildings is not included).
• Permitted use: both reproductions (e.g. taking a selfie or vacation photo) and communicating it online (e.g. on social media ) falls under the exception. However, the work must be reproduced as it is in the public place (i.e. limited use of photoshopping or filters).

9. Other permitted uses

Finally, there are several other acts that are permitted, such as:

• Temporary/technical reproductions: Reproductions that are temporary in nature and intended to achieve a technical transmission of a work are allowed (e.g. in a network, cache memory, etc.).
• Broadcasters: Broadcasters may make temporary recordings of works made with their own resources.
• Disabled: Works may be used for the benefit of persons with disabilities. There are specific provisions for persons with visual impairment.
• Public exhibition: Works may be used to announce public exhibition and public sales.
• Healthcare institutions: hospitals, institutions of youth and disability care as well as prisons can record television broadcasts if they are reserved for the use of persons in these institutions.
• TDM: In addition to the above mentioned exception for text and data mining for scientific research, there is also a TDM exception for all other purposes (rightsholders can however reserve the use for TDM via an opt-out)

Conclusion

Although copyright law provides authors with extensive protection, these statutory exceptions balance the rights of authors with the public interest. It is essential for users to carefully evaluate whether their intended use falls within one of these exceptions and whether all of the stated conditions are met to avoid copyright infringement.