Spotify, Sony Music and Streamz challenge the Belgium’s copyright reform in front of the Constitutional Court

On June 19, 2022, Belgium adopted a copyright law that transposed Directive (EU) 2019/790 into the Belgian Code of Economic Law. This copyright reform entered into force on August 1, 2022. Some of its provisions have now been challenged in front of the Belgian Constitutional Court.

Of particular note was that the copyright reform introduced a new, non-waivable right to obtain remuneration from streaming for authors and performers who have assigned their communication to the public right by streaming platforms (Art. XI.228/11 of the Code of Economic Law).

The new provision reads as follows [translation by this Kat]:

§ 1. When an author or performer of a sound or audio-visual work has assigned his right to authorize or prohibit communication to the public, including making available to the public, by an information society service provider referred to in Article XI.228/10, to a producer, he retains the right to obtain remuneration for communication to the public by a information society service provider [e.g. online platforms] referred to in Article XI.228/10.

§ 2. The right to remuneration referred to in paragraph 1 is non-transferable and cannot be waived by authors or performers.

Paras. 3 and 4 of Art. XI.228/11 further specify that this new right is subject to mandatory collective management.

The new remuneration right aims at addressing a situation, where authors and performers transfer their exploitation rights to producers in exchange for royalties, often in a situation here they have weak bargaining power. Authors and performers claim that such royalties are unproportionally low, especially in online exploitations (such as streaming).

It is helpful to set some context for this. Reforms of the streaming market have been taking place in the UK, which discusses an equitable remuneration right for streaming. As well, French record labels and performers have recently agreed to a deal for streaming remuneration. Spanish copyright legislation already establishes a remuneration right for performers for the making available online of their subject-matters.

Although included in the transposed Belgian law, the new remuneration right is not specifically mandated by Directive (EU) 2019/790. Nevertheless, it can be seen as an implementation of (a rather vague) Art. 18 of the Directive.

Art. 18 requires Member States to “ensure that where authors and performers license or transfer their exclusive rights for the exploitation of their works or other subject matter, they are entitled to receive appropriate and proportionate remuneration”. No concrete mechanisms as to how this shall be achieved are prescribed.

However, during the negotiations of the Directive, the European Parliament advanced a different wording, suggesting that appropriate and proportionate remuneration may be achieved through “statutory remuneration mechanisms” (that is, a new remuneration right for authors and performers). This would secure the financial situation of authors and performers as, even if they transfer their exclusive rights, they cannot be deprived of their remuneration rights.

This is exactly how Belgium transposed Art. 18 of the Directive (EU) 2019/790. It seems that Art. XI.228/11 was introduced in the last moments of the reform. Yet, preparatory documents from 2020 do show that Belgian government was already considering implementing Art. 18 of the Directive (EU) 2019/790 through a new remuneration right for authors and performers.

On January 31 and February 1, 2023, five constitutional challenges were filed against the Belgium’s copyright law of June 19, 2022. Their case numbers are, respectively: 7922, 7924, 7925, 7926, 7927 (see the Constitutional Court’s database for some information on the cases).

Among them, Spotify, Sony Music, Universal Music, Warner Music and Streamz (a local streaming service) challenge the validity of the new remuneration right under Art. XI.228/11. In parallel, Meta and Google challenge other provisions of the copyright law, mainly focusing on the press publisher’s right. 

Scant information is available beyond the name of the parties and the articles that are being challenged. According to L’Echo, a Belgian newspaper that interviewed the plaintiffs, the constitutional challenge will take months to be resolved. In the meantime, if you do not want to miss further developments, the Constitutional Court allows you to subscribe to news about their pending cases.