Copyright is one of the most important intellectual property rights in Belgium. Below is an overview of the most important aspects of Belgian copyright law. Our lawyers are particularly specialized in copyright law (also called "copyright" in the Anglo-Saxon world).
1. Legislation
1.1 National legislation
Since 2015, the legal provisions of Belgian copyright law can be found in Title 5 'Copyright and related rights' of Book XI of the Code of Economic Law (WER). The old 1994 "Copyright Act" no longer exists.
1.2 EU legislation
Copyright was harmonized in the European Union by several directives, the most important of which are Information Society Directive 2021/29, and the most recent, DSM Directive 2019/790 is. The compulsory transposition of these European directives into Belgian law has ensured that Belgian copyright law has far-reaching correspondences with the copyright law of other EU member states. Also, the Court of Justice of the European Union plays an important role here by interpreting concepts or rules in the EU-wide directives. Yet copyright law in Belgium remains defined only by the Belgian WER (there is no Union copyright such as a Union trademark, Union Model or Unitary patent).
1.2 International treaties
Berne Convention of 1886 (last revised in 1971): is the oldest treaty in copyright law and today counts 181 treaty states. The provisions of the Berne Convention can be invoked before a Belgian court (art. XI.290 WER).
TRIPS Agreement of April 15, 1994: is an annex to the agreement establishing the World Trade Organization that covers all aspects of intellectual property rights deals with, including copyright law. TRIPS confirms most of the basic rules of the Berne Convention and adds a number of obligations. TRIPS has no direct effect in Belgium, but Belgian courts must interpret EUµu law as much as possible in light of TRIPS provisions.
WIPO Copyright Treaty (WCT) of December 20, 1996: can be seen as a follow-up to the Berne Convention to modernize copyright law and improve copyright protection at the international level. The provisions of the WCT can be invoked before a Belgian court when they are more favorable than Belgian law (art. XI.290 WER).
2. Copyright protection requirements.
2.1 A concrete form of expression
To enjoy protection under copyright law, a work must have a concrete form of expression. Copyright protects no ideas, concepts, methods or principles, but only the concrete form in which they are expressed. For example, an idea for a novel is not protected, but the written text (as the concrete form of the idea) is. In the same sense, no protection is granted to a genre, a fashion or style, or a technique.
This form of expression must also be sufficiently precise and objectively identifiable. This is not the case, for example, for a taste or a smell.
2.2 The originality requirement (originality requirement)
The work must be original or original to enjoy copyright protection. According to the Court of Justice there must be "the author's own intellectual creation." This is the case when the work reflects the author's personality which is expressed through the author's free creative choices in the creation of the work.
The artistic or artistic character of a work is not a criterion for obtaining copyright protection. Utilitarian objects can also be protected.
2.3 No filing requirement
No registration requirement
Unlike some other intellectual property rights, such as patents or brands, copyright arises automatically upon creation of the work. No registration or filing is required to enjoy protection. This prohibition on formalities is enshrined in the Berne Convention.
However, the author - in case of discussion - will have to prove that he created the work (on a certain date). For this purpose, for example, the i-depot.
Value of the copyright sign
The copyright sign © has no legal value or requirement in Belgium. Placing this sign on a work does not create any additional rights, nor is it necessary for protection. However, the use of the copyright sign together with the name of a person creates the legal presumption that that person is the copyright holder (art. XI.170, second paragraph WER). Nevertheless, its use is recommended, especially in an international context, to inform third parties that the work is copyrighted and who is the right holder.
Legal deposit
Although there is no registration requirement for copyright protection, there is a system of legal deposit for certain publications in Belgium. According to the law of April 8, 1965 publishers must deposit a copy of every publication published in Belgium with the Royal Library of Belgium. However, this is not for copyright protection but for cultural heritage preservation and bibliographic purposes.
3. Application domains
3.1 What creations are protected
Copyright protects a wide range of creative works, including but not limited to:
- Literary works (books, articles, poems, etc.)
- Musical compositions (with or without lyrics)
- Dramatic works and choreography
- Audiovisual works (films, TV programs, etc.)
- Visual artworks (paintings, sculptures, drawings, etc.)
- Photographic works
- Architectural works
- Applied art and design (furniture, clothing, utensils, etc.)
- Software and computer programs
- Databases
The list is not exhaustive, as new forms of expression may emerge with technological and cultural developments.
3.2 Who can invoke protection
The creator of the work (art. XI.170 WER)
According to Article XI.170 WER, the author is the natural person who created the work. Thus, a legal person (such as a corporation, government agency, association, etc.) can never be the original author of a work. However, the author can transfer his copyright property rights to a legal person.
After the author's death, copyright passes to his heirs or legatees.
Cooperation between different authors (articles XI.168 and XI.169 WER)
For works created through the collaboration of several authors, Belgian law distinguishes between:
- Indivisible cooperation (Article XI.168 WER): When a work is created by more than one person and their contributions cannot be separated, it is a work of co-authorship. Copyright then belongs jointly to all authors, who must make decisions about the work by mutual agreement.
- Divisible cooperation (Article XI.169 WER).: When a work consists of contributions that can be separated, each author may exploit his contribution separately, provided that this does not detract from the joint work.
Copyright works created in the course of employment or in performance of an order (Article XI.167 §3)
The circumstance that a work was created within an employment relationship (such as by an employee or in performance of a commission (such as by an outside supplier) does not affect the principle that copyright belongs to the author.
However, under certain conditions, the employee can transfer his copyrights (through an employment contract or statute) to the employer, or the contractor can transfer his copyrights to the client.
Special rules on audiovisual works (art. XI.179 and XI. 182 WER)
Special rules apply to audiovisual works due to their complex and collaborative nature. Article XI.179 WER provides that the principal director, the screenwriter, the adaptor, the lyricist, the graphic designer of animation works and the composer of music specially composed for the work are deemed to be co-authors
Article XI.182 WER introduces a (rebuttable) presumption of transfer of audiovisual exploitation rights to the producer to facilitate commercial exploitation.
3.3 Duration of copyright
In Belgium, the term of copyright is fixed at 70 years after the death of the author (post mortem auctoris), in accordance with Article XI.166 WER. For works of co-authorship, this term begins to run from the death of the longest surviving co-author.
For anonymous or pseudonymous works whose author is not known, the term of protection is 70 years from the time the work is lawfully made available to the public. If the author's identity becomes known during this period, the standard rule of 70 years after the author's death applies.
3.4 Non-protected creations
Acts of government (art. XI.172 WER)
Article XI.172 WER specifically states that official acts of government are not protected by copyright. This includes laws, decrees, ordinances, court decisions and other official documents of public authorities. This exception is based on the principle that such documents should be freely accessible to the public.
Works that are in the public domain
Works whose term of protection has expired are in the public domain. These works can be freely used by anyone, without having to ask permission or pay fees. Also, works explicitly placed in the public domain by the author (such as under CC0 license), are included, although the ability to fully waive moral rights is disputed in Belgium.
4. Scope of protection
4.1 Two types of rights
Belgian copyright law grants two categories of rights to the author: moral rights and property rights. Moral rights protect the personal relationship between the author and his work, while property rights relate to the economic exploitation of the work.
4.2 The moral rights
Moral rights are personality rights that are inalienable and non-transferable. They include:
- The law of divulgation (disclosure law): The right to decide when and how a work is first made public.
- Paternity law (right to name recognition): The right to be recognized and cited as the author of the work.
- Integrity law (right to reverence): The right to oppose any alteration, distortion or mutilation of the work that may damage the author's honor or reputation.
Although moral rights cannot be fully transferred, the author may waive their exercise in specific circumstances, provided such waiver is expressly and precisely defined.
4.3 The property rights
General
Property rights give the author the exclusive right to exploit his work economically and to permit or prohibit third parties from performing certain acts with respect to his work. These rights, unlike moral rights, can be transferred or licensed.
The reproduction right
The reproduction right gives the author the exclusive right to reproduce or cause to be reproduced his work in any form or medium. This includes both direct and indirect, temporary or permanent, full or partial reproductions.
This right covers, among other things:
- Making copies of books, magazines or other printed materials
- Recording music or videos
- Making photocopies
- Digitizing works
- Storing works in electronic form (e.g., on a computer, in the cloud)
The reproduction right also includes the right to adapt (the adaptation right) or translate a work.
The distribution law
The distribution right gives the author the exclusive right to market copies of his work. This includes:
- Selling printed copies of a novel in a bookstore
- Selling music on CD or vinyl record in a music store
- Selling movies on DVD or Blu-ray in a department store
The distribution right is, however, limited by a principle of Community exhaustion. After a first lawful sale of a copy of a work in the European Economic Area, the author can no longer control further resales of this work within the EEU.
The author does always retain the right to control the rental or lending of a work.
The public disclosure right
The public communication right gives the author the exclusive right to communicate his work to the public in any form. This includes:
- Broadcasting works by radio or television
- Screening of films in cinemas
- Performing plays or musical works
- Exhibiting works of art
- Making works available on the Internet (e.g., via streaming or downloads)
The term "communication to the public" has been broadly interpreted by several ECJ rulings to include any act of communication to an audience that may involve a "new audience" or the use of a variety of technical modes of communication.
4.4 The exceptions
Belgian copyright law provides for a number of exceptions to the author's exclusive rights.
Some important exceptions in Belgian copyright law are:
- Quote Law : The right to cite short excerpts from a work for criticism, polemic, teaching or in the context of scholarly work, provided the source is cited.
- Private copy: The reproduction of works for private use .
- Education and scientific research : Various exceptions for educational and scientific purposes.
- Parody, pastiche and caricature: The use of existing works for parody, pastiche or caricature, taking into account fair uses.
- Panoramic Freedom: The reproduction and communication to the public of works of visual, graphic or architectural art permanently placed in public places.
For a comprehensive overview, please refer to our page describing the exceptions.
Special rules on works of visual art and portraits (art. XI.173 ff. WER)
Some special rules apply to works of fine art and portraits:
- Portraits (Article XI.174 WER): The reproduction or public communication of a portrait requires the consent of both the person portrayed and the author of the portrait. This protects the image right (right to image) of the person portrayed.
- Sale of material carriers (Article XI.173 WER): The transfer of the material object in which a work is embodied (e.g., a painting or sculpture) does not imply the transfer of copyright. Thus, the purchaser of a work of art does not acquire copyright unless expressly agreed upon.
4.4 The resale right
The resale right (Articles XI.175-XI.178 WER) is a specific right for authors of original works of art, through which they receive a percentage of the sale price when their works are resold. It applies only to sales involving art dealers where the sale price exceeds a certain minimum.
This right is not transferable during the author's lifetime and expires 70 years after the author's death. The resale right is intended to allow artists to share in the increase in value of their work on the art market, even after they have sold the material copy.
5. Property rights agreements
5.1 General rules
Belgian copyright law has strict rules for copyright contracts, with the aim of protecting the author. Article XI.167 WER provides that:
- Agreements concerning property rights must be in writing
- The scope of the transfer of rights is interpreted restrictively in favor of the author
- For each mode of exploitation, the fee, scope and duration must be explicitly defined
Moreover, the author cannot waive certain rights, such as the right to equitable remuneration or future forms of exploitation not yet known at the time of the agreement.
5.2 Rules for operating contracts
Exploitation agreements are agreements whereby an author author authorizes a third party (publisher, producer, etc.) to exploit his work. Belgian law contains specific provisions for such agreements:
- Appropriate and proportionate compensation
Authors are entitled to "appropriate and proportionate remuneration" when they license or transfer their exclusive rights. This significantly strengthens authors' bargaining power. - Transparency obligation
Operators are now required to provide up-to-date, relevant and complete information on the exploitation of works on a regular basis and at least once a year, in particular: the modes of exploitation, all revenue generated and the fees due. This increased transparency allows authors to better verify that they are receiving a fair share of revenues. - Bestseller provision (success clause).
The so-called "best seller provision" entitles authors to additional, appropriate and equitable remuneration when the originally agreed remuneration proves to be disproportionately low in relation to all subsequent relevant income from exploitation. - Right of Withdrawal
Authors have and right of revocation (or "use it or lose it" provision) that allows them to revoke all or part of their rights if their work is not exploited. This right can be exercised: after a reasonable time after the license or assignment is concluded, or after a reminder giving an appropriate time to still exploit the work
5.3 Special rules
Special rules apply to certain categories of works or forms of exploitation:
- Audiovisual works (Article XI.182-XI.183 WER): Presumption of transfer of exploitation rights to producer, except as otherwise provided.
- Computer programs (Article XI.296 WER): For works created by employees, property rights are automatically transferred to the employer unless otherwise agreed.
- Databases (Article XI.186 WER): Special provisions for database protection, including a sui generis right for producers.
5.4 Exercise of copyright by collecting societies
Collective management organizations play an important role in the management of copyrights in Belgium. These organizations, such as SABAM (for music and literary works), SOFAM (for visual arts) and SACD (for audiovisual works), collectively manage authors' rights and ensure the collection and distribution of royalties.
Article XI.247-XI.273 WER regulates the establishment, operation and control of these organizations. Authors may voluntarily transfer their rights to a collective management organization, which then acts on their behalf in granting licenses and collecting fees.
In certain cases, collective management is mandatory, such as for the resale right, private copy and reprography fees, and cable transmission.
Collective management organizations are supervised by the Control Service for Management Companies, which falls under the FPS Economy.
Conclusion
Belgian copyright law provides a comprehensive legal framework for the protection of creative works and the interests of their creators. The automatic protection without formalities, the long term of protection and the duality of moral and property rights are the cornerstones of this system.
At the same time, the law provides for a balance between the interests of authors and those of society through specific exceptions and limitations. The strict rules on copyright contracts are designed to protect authors from unfavorable contractual terms.
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