Laws and regulations

The impetus for a Belgian lending right regulation was given by a European Directive 92/100/EC of 19 November 1992 relative to the right of rental and of lending and to certain neighbouring rights of the copyright into the domain of intellectual property (OJ, L. 346, 27 November 1992), which was slightly amended by a Directive from 1993 (93/98/EEC).

In Belgium, this was translated into the on copyright and neighbouring rights (M.B. 27 July 1994, err. M.B. 5 November 1994, err. M.B. 22 November 1994), amended by the Law of 3 April 1995 (M.B. 29 April 1995), amended by the Law of 31 August 1998 (M.B. 14 November 1998) and amended by the Law of 22 May 2005 (M.B. 27 May 2005). This Law is known as the Authors Law for short.
Articles 23, 47, 62 and 63 of this Authors Law are of particular relevance to the lending right.
Article 23 §1 states that the author may not prohibit the lending of literary works, databases, works of photography, music scores, sound works and audiovisual works if:

  • the lending takes place for an educational or cultural purpose
  • by institutions that are officially recognised or set up to this end by the government

Article 47 §1 states that the performing artist and producer of phonograms and of first recordings of films may not prohibit lending if:

  • the lending takes place for an educational or cultural purpose
  • by institutions that are officially recognised or set up to this end by the government

Article 62 states that in the event of a loan of:

  • works of literature
  • databases
  • photographic works
  • music scores
  • sound works or audiovisual works

under the conditions set forth in Articles 23 and 47, the author, performing artist and/or producer are entitled to a fee
Article 63 §2 states that the King may charge one society with the collection and distribution of fees for public lending:

  • in accordance with the conditions and more specific regulations laid down by Him
  • whereby all categories of right holders must be represented by the collective society

The unwillingness or reticence of the Belgian government to enshrine the articles concerned by means of an implementing decree led to legal action and ultimately to the censure of the Belgian State.
Thus, Belgium was obliged to introduce a regulation before 1 April 2004, according to which heavy fines would follow if need be. Although the regulation had to be introduced at national level, it should - according to the logic of the Belgian state reform - be the institutions of the three Communities that should ultimately sort the matter out. It is highly likely that this was (and is?) one of the controversial issues in this dossier.
At the eleventh hour the Royal Decree of 25 April 2004 on right of authors, interpreting or performing artists, producers of phonograms and producers of first fixations of films to remuneration in case of public lending (M.B. 14 May 2004) was passed.
Finally, Reprobel still had to be appointed as the responsible collective society, which happened with the Royal Decree of 7 April 2005.

This Royal Decree comes into force with immediate effect, but also states that it will be rendered inoperative on 1 November 2005.  Apparently the reason for this is that the government wanted to be certain that all the administrative formalities would be fulfilled quickly, including an Auvibel mandate, and that the actual implementation would begin quickly.

Because both these administrative formalities and the start of activities passed off properly, there is in principle nothing in the way of a definitive appointment of Reprobel…  

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