Online copyright infringement: Belgian summary procedure targets primary infringers and intermediaries

3rd October 2022

Due to the widespread nature and fast pace of the online world, rightsholders often incur difficulties combating online copyright infringement. Existing court proceedings are seemingly too slow or deemed ineffective, as illegal content can be reproduced on several other websites by the time the rightsholder receives a judgment. The Belgian legislator now wants to tackle this issue by providing rightsholders with a new procedure to combat such large-scale online copyright infringement in a quick and efficient manner.

On 1 August 2022, the Belgian law transposing the EU Copyright Directive [1] entered into force (“the Law”). Next to the implementation of the provisions provided for in the EU Copyright Directive, the Law also introduces a new procedure to combat online copyright infringement and related rights such as database rights. The entry into force of this new procedure is however subject to the publication of a Royal Decree, which is still to be adopted. You can view our EU Copyright Directive Tracker, which will help you keep up-to-date with recent developments on the implementation of the Copyright Directive.

Ex parte summary procedure

The Law has created an ex parte summary procedure whereby any affected party may introduce an action before the President of the Brussels Court of Enterprise. Importantly, interim measures to end online copyright infringement may be imposed, not only on the primary infringer, but also on any intermediary, such as Internet service providers, search engines or even payment providers, whose online services are used to commit the (alleged) online copyright infringement. Another novelty is that interim measures may be extended to so-called ‘mirror sites’.

The new summary proceedings may however only be used to combat online infringement on ‘soft IP’ (copyright, neighbouring rights and database rights). Rightsholders can thus not rely on this procedure to tackle infringements of industrial property rights, such as trade marks or patents. The legislator chose not to introduce such ex parte procedure for industrial property rights since “in the digital environment, copyright works and performances are more exposed to significant, large-scale and frequent infringements than subject-matter protected by industrial property rights. When digital copies of protected works are distributed on the Internet without the permission of the rightsholders, these copyright and neighbouring rights are directly and unambiguously infringed. Such direct and unambiguous link between the infringement and the exploitation rights is not present to the same extent for industrial property rights”. For these reasons, it is considered proportionate and appropriate to apply the new regime to ‘soft IP rights’ only.

Impact on rightsholders and online intermediaries

The Law will in any case have a considerable impact on rightsholders as it increases their enforcement possibilities for online copyright infringements. Similarly, online intermediaries will be affected by the Law as they will need to initiate proceedings if they want to challenge the (extent of the) imposed interim measures. This new procedure therefore requires online intermediaries to take up more responsibilities to combat online infringements of soft IP rights. It remains to be seen how this Belgian procedure will interact with the procedures provided for in Article 17 of the EU Copyright Directive, and the upcoming reformed liability regime under the Digital Services Act.

Overview of key features of the new procedure

Ex parte

The summary proceedings are to be introduced before the President of the Dutch or French speaking Court of Enterprise of Brussels. The judge shall issue its decision within 8 days from filing the request.

Importantly, the judge may impose such interim measures without hearing the affected parties, i.e. the alleged infringer or any intermediary service provider. The judge can therefore decide, at its own discretion, whether hearing the affected parties is necessary in a particular case.

Conditions to introduce claim

The claimant of the unilateral request for interim measures must demonstrate that:

• The rights invoked by the claimant are prima facie valid
• The infringement is prima facie apparent and significant
• The requested interim measures can be reasonably justified in light of the rights and freedoms involved (balance of interest)
  

Recipients: primary infringer and intermediaries

When these conditions are met, the President of the Court shall issue its interim judgment against the alleged infringer, as well as against any intermediary whose services are used to commit the alleged infringement. It is thus not required to first direct the action against the primary infringer or to demonstrate the impossibility of taking action against them.

The concept of ‘intermediary’ must be understood in a very broad sense, as it will cover not only Internet service providers and hosts, but also payment intermediaries, (operators of) search engines, domain name managers, etc. It will thus be up to the claimant to specify against whom it wishes to impose the requested interim measures.

Types of interim measures

The Law does not specify the types of interim measures that can be ordered, but envisages “any measure, that can stop or contribute to the cessation of the acts that infringe the rights invoked by the claimant, or the acts that facilitate or broaden the scope of such infringement”.

The measures in question may include ordering a host or a platform operator to take the apparently infringing content offline, but also, for example, ordering Internet service providers operating in Belgium to make the disputed content inaccessible, ordering search engines to remove or declassify references to the website offering such content, or prohibiting payment intermediaries from offering their services in favour of the alleged infringer, etc.

Mirror sites

It is worth highlighting that the judge will be able to extend his interim judgment to the mirror sites of the website concerned (i.e. sites that take over the entire content and/or copy in a practically identical way the site intended by the order, or to part of it). The measures ordered by the court can also be extended to any page that directly gives access (in particular via a hyperlink) to the allegedly infringing website or a mirror site. This feature has been introduced since, in practice, interim measures or cease-and-desist orders directed against a website that contains unauthorized content is often circumvented by the creation of mirror sites that copy the site (or the content of that site) against which the measure was issued.

Creation of specific Service within FPS Economy

Furthermore, a Service for the fight against copyright infringements and related rights on the internet (‘the Service’) will be established within the FPS Economy of the Belgian government. The Service may be authorised by the judge to determine the detailed rules for the application of the interim measures. However, the Service cannot, in any event, extend, restrict or modify the interim measures as imposed by the judge.

Appeal & revocation of interim measures

Any interested party will be able to oppose both the interim judgment as such as well as the manner in which the interim measures are carried out by the recipients of the interim measures (e.g. in case of limitation to freedom of expression of users). If the procedure has been introduced by way of a unilateral application, the affected parties (i.e. the alleged infringer and/or the intermediary), will need to introduce a third-party opposition.

In any case, the execution of the interim measures can be revoked upon request of any person to whom the measures were imposed, in case the claimant does not initiate proceedings on the merits within a reasonable period of time (in principle 20 business days, or 31 days from the day on which the interim judgment has been served to the affected party).

[1] Law of 19 June 2022 transposing Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the digital single market and amending Directives 96/9/EC and 2001/29/EC.