Creators' Rights Alliance - Between a rock and a hard place - Appendix 2: Select European Laws
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Belgian law of copyright is largely to be found in the Law of 30 June 1994.[1] As with most laws, Belgian law confers both economic and moral rights. In general, transfers of economic rights are permissible. Contracts should be in writing and are to be interpreted strictly (Art. 3(1)): the author retains what he has not transferred.[2] For each mode of exploitation, the author’s remuneration and the extent and duration of the transfer must be stated expressly. As Strowel explains “where there is any doubt about the scope of a transfer, the contract must be interpreted in favour of the author who has engaged to transfer rights, and, therefore, against the purported transferee.”[3] The transferee is under a duty to exploit the work in accordance with honest professional practice (usage honnêtes de la profession).[4][5] Transfers of rights for forms of exploitation which are still unknown are invalid. Transfers of economic rights in future works are valid only for a limited period and on condition that the type of works involved are specified.[6]

However, a number of these provisions do not apply to commissioned works for advertising and outside the cultural industry/cultural field.[7] Thus there is no obligation to exploit and no need to specify remuneration for each mode of exploitation. The rule against transfer in relation to future technologies is commuted to a requirement that the transfer be express and that the author be granted a share of the profits generated by such exploitation. Importantly, in these cases collective agreements can operate.

Belgian copyright law contains special provisions on publishing contracts, and performance contracts, audiovisual production contracts and audiovisual adaptation contracts. A publishing contract may not include the film rights: a separate contract is required.[8] Other provisions include a general obligation to pay remuneration proportionate to gross receipts (recettes brutes), although the author can agree to a lump sum or even a gratuitous grant. However, where a lump sum has been agreed a version of the best-seller (or success) clause exists, where in view of the work’s success, the remuneration is ‘manifestly disproportionate’ to the profit derived from the exploitation.’ In such cases the publisher must agree to adjust the remuneration so as to grant the author an equitable share of the profit. The publisher cannot transfer the contract without the author’s agreement, and if the publisher fails to publish within the agreed time, rights automatically revert to the author.[9] Detailed provisions also exist in relation to stocks of copies,[10] and the bankruptcy of the publisher.[11]

As regards performances, the Act imposes certain restrictions on the duration of such contracts: in the case of live performances and alienation cannot exceed three years.[12] There are also proportionate remuneration provisions, equivalent to the best-seller clause, for authorizations of live performances in return for a lump sum.[13] As regards audiovisual production contracts, there is a presumptive transfer of the exploitation rights from authors to producer, though the right to remuneration is retained and is to be calculated separately for each mode of exploitation.[14]

[1] For commentaries in English, see J. Corbet, (1995) 164 Revue Internationale De Droit D’auteur 50; 183 Revue Internationale De Droit D’auteur 108; A. Strowel in M. Nimmer & P. Geller (eds.), International Copyright Law and Practice (New York: Matthew Bender 2000, annually updated) (hereafter, ‘Strowel’).

[2] For example, in Association Generale des Journalistes Professonels de Belgique v SCRL Central Station [1998] ECC 40, the defendant, a company formed by the main Belgian newspaper publishers, established a database of articles accessible via the Internet. The Brussels Court of First Instance held that where these articles were written by freelance journalists, it was necessary for the defendant to justify its action by producing their written consents.

[3] Strowel, BEL-33 para 4[2][c]..

[4]  Belgium, Art. 3(1).

[5] Belgium, Art. 3(1) The clause is effectively deleted from the contract, the rest of which remains valid: Strowel, BEL-34 para 4[3][a].

[6]  Belgium, Art. 3(2).

[7]  Belgium, Art. 3(3).

[8]  Belgium, Art. 17.

[9]  Belgium, Art. 26.

[10] Belgium, Arts. 27-29.

[11]  Belgium, Art. 30.

[12]  Belgium, Art. 31.

[13]  Belgium, Art. 32.

[14]  Belgium, Art. 19(1).

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