The matter of the copyright law is a complex and ambiguous area. We know it more than anyone. This is the purpose of our articles: to talk about the subject of copyright by speaking as clearly as possible.
Ministerial codification has changed a lot in the field of copyright, including in the field of what is called “fair remuneration”.
We’re going on three texts in a row to present you this topic: the first text will explain the principles, the second will teach you how the principles have been applied in practice and the third will comment on how the codification have changed the principles related to this fair remuneration.
The rights of authors and of the public
The Belgian Act of 30 June 1994 on copyright and related rights specifies in its first section the rights of authors related to their works: they have full power over what they have created. Only the author can decide when his work will be made public, in what form and by what mean(s). This is what we call the exclusive rights of the authors on their works.
The same rights exist for artists on their musical performance or their audiovisual performances.
However, these rights are not infinite.
Indeed, the law has provided for situations where the public, consumers to speak modern language, may use the work without having to ask for the creator’s authorisation. These situations (called “exceptions“) are limitatively enumerated in the law. You can, for example, copy a few pages of a book for your private use or reproduce a digital song on your personal iPod.
In certain situations and to compensate for the harm they suffer (because they can not monetize you their agreement), the law provided for a compensatory remuneration for the author or artist.
An unknown mandatory licence called the “fair remuneration”
One of the situations against which authors and musical artists (and their producers for that matter) may not oppose but just receive a compensatory payment is commonly called the “fair remuneration” (“rémunération équitable”).
This “exception” is included in Articles 41-43 of the law. The texts are not very clear to read.
The texts are written to not allow artists and producers to oppose the communication to the public of the performances when these communications take place in a public place or when they are broadcasted (art. 41). Note that the same system also exists in France (art. L.214-1 of the French Intellectual Property Code).
Regarding the first situation, the law also specifies that these communications to the public can not take place in a situation for which a right have been perceived to access the place where the communication to the public will have to happen or even a counterparty have been asked to enjoy this communication.
A clarification here.
When we speak about the rights of artists and producers or even broadcasters, we call them “neighbouring rights” (“droits voisins”). A writer, a journalist or a photographer has “authorsright.” It is a precision that is not only terminological since artists have substantially lower rights than those of authors.
About the fair remuneration, the law states that what we have written only applies “Without prejudice to the right of the author when the performance is lawfully reproduced or broadcast“.
The phrase “without prejudice” is always ambiguous in legal matters! Here it reminds us that the author also has to be charged in the two situations described. It is therefore mandatory to also obtain their consent prior to the communication to the public or to the broadcasting. When we talk about “author” here we speak about authors of lyrics or of music or the authors of the scenario of a film.
Determining the amount, it is the business of an administrative commission
It is fine to say that artists and producers are entitled to a remuneration which the law calls “fair”, it still more enjoyable to explain how they will be able to receive the money and how much.
This is the purpose of Articles 42 and 43 of the Act.
The law provides for a cascade system for determining the amount of the compensator and fair remuneration.
It leaves the parties time to arrange between them. Six months. After this period, the amount of the remuneration will be determined by a commission which will be consists of an equal number of representatives of beneficiaries of the remuneration and representatives of debtors. The organisations will be selected by the Minister. The committee is chaired by the representative of the Minister responsible for the copyright (M.Debrulle now).
The Act also states that debtors must provide for information relevant to the collection and distribution of royalties. The committee decides by a majority vote. In case of a tie, the president has the final vote.
The decisions of the Committee are published in the Belgian Official Gazette.
As with collective labor agreements, the King may make the commission settlement mandatory for everybody, through a royal decree.
Although the Committee has taken legally a decision, the Minister may always refuse to provide to the King to make a binding decision but only if the decision “contains provisions manifestly illegal or contrary to the general interest “. The Minister must tell the commission the reasons of his decision.
The Law also states that the amount of the fair remuneration is mandatory split 50/50 btween artists and producers.
To be continued …