Copyrights are very prone to large-scale infringements in the digital world. The European Commission addressed rightsholders’ concerns in this regard through Directive 2019/790 on copyright and related rights in the Digital Single Market (CDSM Directive), which was implemented in Belgium by the act of 19 June 2022 (the Act).

The Belgian legislator, however, by way of gold plating, further enhanced the fight against large-scale infringements of copyrights, neighbouring rights and database producer rights through the introduction of new ex parte summary proceedings, by which rightsholders can request to impose interim measures on both infringers and intermediaries.

The introduction of these new proceedings, as provided for in the new articles XVII.34/1 to XVII.34/5 of the Belgian Code on Economic Law (BCEL), follows the gist of the CDSM Directive, which advocates for a larger responsibility on the part of online intermediaries with respect to protected works. The date of entry into force is still to be decided by Royal Decree, but is expected to be in 2024.

Overview

1. Scope of the new ex parte summary procedure

The application of the new ex parte summary proceedings is subject to three cumulative conditions, which are inspired by the existing seizure proceedings for IP infringements (saisie-contrefaçon/beslag inzake namaak).

• A prima facie valid copyright, neighbouring right or database producer right
  This also includes software rights. Industrial property rights, such as trademarks and patents, do not fall within the scope. The justification for this distinction is that copyrights, neighbouring rights and database producer rights are more subject to large-scale online infringement, for which a quicker and more efficient remedy is needed.
  
  
• A prima facie obvious and substantial online infringement
  The alleged infringement must be obvious in the sense that it cannot reasonably be disputed, which corresponds to the criterion for the saisie-contrefaçon.
  
  The substantial character of the alleged online infringement can be assessed on both a quantitative and a qualitative basis: an alleged infringement is substantial due to its large-scale character or due to the serious harm that may be inflicted on the rightsholder by a single infringement. This will have to be assessed on a case-by-case basis. The legislator has given two examples of quantitative and qualitative substantial infringements in the explanatory memorandum of the Act, ie an illegal streaming website which makes available a large amount of protected works and the circulation of a movie before its official release date.
  
  
• Balance of interest
  The interim measures imposed must be reasonable and proportionate in relation to other (fundamental) rights, such as the right to respect internet users’ private life, freedom of speech and entrepreneurial freedom.

Similar to the saisie-contrefaçon, however contrary to standard unilateral summary proceedings (kort geding/procédure en référé), both urgency and absolute necessity are presumed and must therefore not be demonstrated.

2. Interim measures against any primary infringer or intermediary

Interim measures can be imposed both on the alleged infringer and on any intermediary whose services are used to commit the infringement.

“Intermediary” must be understood in a broad sense, including internet service providers (ISPs), hosting service providers, search engine operators, domain name managers, cloud providers and payment intermediaries.

Any measures that might contribute to stopping the infringement can be requested. The explanatory memorandum of the Act lists the following examples of interim measures:

• stop the alleged infringement
• order a website operator or host to take certain content offline
• order an ISP to block access to certain content within Belgium
• order search engines to remove or declassify references to a website that offers the alleged infringing content
• order payment intermediaries to suspend the provision of their services to the alleged infringer
• publish a summary of the court order or a message on the internet

Any of the measures can be extended to so-called mirror websites, which are websites that practically replicate the content of the original website(s) targeted by the summary order as well as to any URL providing direct access to the same. This should prevent the possible circumvention of the measures.

There are two main limitations on the interim measures: the interim measure may never lead to a de facto general monitoring obligation for intermediaries, and it may not unnecessarily render public access to information impossible.

It’s up to the claimant to clarify which measures are requested against which primary infringer and/or intermediary. The President of the Enterprise Court can only grant interim measures that have been requested and are proportionate, however can decide to make the interim measures subject to the condition that the rightsholder provides an adequate security deposit or an equivalent guarantee for any compensation for damages that may be suffered by the alleged infringer, the intermediaries involved or any other person affected by the provisional measures.

3. The summary order

The President of the Enterprise Court in Brussels has the exclusive jurisdiction and can be seized through a unilateral request or a writ of summons. The President can but is not obliged to hear the parties and must render its summary order within eight working days.

When the President finds that the three cumulative conditions are met, it will order the cessation of the alleged infringement and (i) either leave it to the addressee(s) of the judgment to decide which enforcement measures are best adopted, (ii) or specify directly in the judgment which specific provisional measures are to be adopted, and (iii) can authorise a newly set-up service (“the Service”) to specify the detailed rules of application of the order (cf. infra).

Any stakeholder, as well as certain legal persons, public institutions and collective management organisations (CMOs) can oppose the imposed measures through an appeal or a third-party opposition, among other reasons for the extreme impact that the measures may have on fundamental rights and freedoms.

Any summary order will be provisionally enforceable unless indicated otherwise by the President.

Lastly, the execution of interim measures can be revoked at the request of the addressee if the claimant does not initiate proceedings on the merits within a reasonable term as set out by the President or the BCEL.

In principle, the jurisdiction of the President is limited to the Belgian territory. This may incur practical difficulties regarding the measures against online intermediaries which in practice operate cross-border. In line with case law of the Court of Justice of the European Union (see case-507/17 on the territorial scope of the right to de-referencing), it may be that online intermediaries will not have to carry out any measure outside of Belgium.

4. Specific Service within the FPS Economy

A new and specialised Service within the Federal Public Service (FPS) Economy will be set up for the fight against copyright infringement on the internet. This Service will consist of experts, will play a key role in combatting online copyright infringement and received a role in the elaboration and implementation of the measures imposed by the President.

The President may order the cessation of the alleged infringement and authorise the Service to determine the modalities of the summary order (cf. supra). The Service will then establish the appropriate technical measures.

The President also may instruct the Service to monitor the interim measures and adapt them where necessary to ensure their effectiveness. For example, where the allegedly infringing content would be re-uploaded on a different page of the website that was envisaged by the summary order, the Service may extend the summary order to the new page. The President may further rely upon the Service to identify mirror websites (cf. supra).

Where the President has left it up to the addressee(s) of the summary order to decide which enforcement measures are best adopted, the Service may reach out to the President if they consider the adopted measures insufficient, excessive or obsolete.

The Service will also keep track of the infringing websites and the websites which lawfully offer protected content by means of a black-list and a white-list, respectively.

Lastly, the President may at any time seek advice from the Service when issuing a summary order.

Online intermediaries: Be warned

Articles XVII.34/1 to VXII.34/5 BCEL which introduce this new ex parte summary proceedings against large-scale online copyright infringement have not yet entered into force. However, this is expected to happen in 2024.

DLA Piper closely and continuously monitors the legislative evolutions in this regard. For further information or questions, please get in touch with your usual DLA Piper contact.