NautaDutilh is advising certain rights holders in their support of the Act.
As outlined in our previous update on the Act, the Directive requires that rights holders receive appropriate and proportionate remuneration, as well as timely and comprehensible information regarding the exploitation of their works.
The Belgian legislator has gone further by mandating that online platforms enter into licensing agreements with press publishers. The Act also empowers an administrative authority, the Belgian Institute for Postal Services and Telecommunications (BIPT), to impose remuneration where platforms and press publishers fail to reach an agreement. Additionally, the Act establishes a mandatory right to remuneration for authors and performers, managed collectively through Collective Management Societies (such as Sabam), to be paid by platforms disseminating their works online, including streaming services.
The questions referred to the CJEU for a preliminary ruling concern the compatibility of this regime with the Directive. Central to this is the obligation to remunerate press publishers and provide them with information, irrespective of whether press publications are uploaded by the publishers themselves, whether such publications are protected by copyright or accessible in full or in part, or whether the publishers already receive revenues. The confidentiality of the exchanged information is also under scrutiny. Platforms contend that they are being subjected to an unlawful "monitoring obligation”.
Further significant questions arise as to whether the mandatory right to remuneration for authors and performers is compatible with the Charter of Fundamental Rights and the notification procedures to the European Commission, particularly where platforms have already obtained authorisation from other rights holders (e.g., producers) for using their works.