Out-Law / Your Daily Need-To-Know

Royalties collector proposes 'piracy licence' on Belgian ISPs

Out-Law News | 14 Nov 2011 | 11:55 am | 3 min. read

A royalties collecting society plans to charge internet service providers (ISPs) in Belgium a levy for copyright infringement, according to media reports.

Sabam, which represents Belgian artists and authors' rights groups, has said that ISPs should have to pay 3.4% of the fees they charge internet users in the country because they are facilitating copyright infringement. This would compensate rights holders over lost revenues, a report by Torrent Freak has said.

Sabam claims that internet downloads and streaming activity constitute "public broadcasts", which, under Belgian copyright law, entitles rights holders to compensation for those transmissions. Cable television broadcasters in Belgium are already charged 3.4% of fees they charge subscribers for broadcasting copyrighted content.

Sabam said that whilst its proposed 'piracy licence' would legitimise the ISPs' part in allowing users to access illegal content, it would not make copyright infringement itself a legitimate act. The Belgian ISPs said that Sabam's charge is "not legally justified", according to Torrent Freak.

Copyright law expert Iain Connor of Pinsent Masons, the law firm behind Out-Law.com, said that Sabam may be using their 'piracy licence' as "traction" in an existing legal dispute with Belgian ISPs.

The collecting society and ISPs are currently involved in a lengthy legal battle regarding filtering of illegally copied content. Sabam has argued that the ISPs should have to filter content users access in search of copyright infringement, but the ISPs claim to do so would invade users' privacy. The dispute has reached the European courts.

"It looks like Sabam is seeking to gain traction for its general position that, as a lawful collecting society on behalf of rights holders, it should be taking all steps to secure royalties where there is use of their members' music," Connor said.

"However, the legitimacy of this particular step will almost certainly have to be tested in the courts. EU law does allow member states to have a system of levies on blank media to compensate artists where there is a specific private copying exemption to copyright and therefore it will be up to Sabam to persuade the relevant authorities that their proposed levy is justified on similar grounds," he said.

"In the UK the action against BT in respect of the Newzbin2 website does show that a court may be willing to introduce sanctions against an ISP for copyright infringement over their network, but only in limited circumstances where the sanction is proportionate to the potential harm caused," Connor said.

In a non legally binding opinion published in April a top legal advisor to the European Court of Justice (ECJ) said that Scarlet, one of the ISPs in Belgium, should not have to filter copyright-infringing traffic from its service. Pedro Cruz Villalón, an advocate general of ECJ, said that to do so would invade users' privacy.

Under EU data protection laws personal data must be "processed fairly and lawfully" and be collected for "specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes". The laws also state that information can only be processed if a person has given their unambiguous consent and if that consent is explicitly given.

Separate EU laws set out in the EU's Privacy and Electronic Communications Directive also state that storing and accessing information on users' computers is generally only lawful "on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information … about the purposes of the processing".

Scarlet had been ordered by a Belgian court to filter traffic that infringed copyrights belonging to members of Sabam, but the ISP appealed, claiming it would force ISPs to carry out "invisible and illegal" checks on an internet users' activity.

In 2010 the Brussels Court of Appeal said it could not rule on the matter without first referring two questions to the European Court of Justice (ECJ).

Brussels has asked the ECJ to determine if delivering an injunction against ISPs forcing it to filter content suspected of copyright infringement contradicts a person's right to privacy and protection of personal data. It also asked the ECJ if a national court should balance the extent with which it orders screening to take place with the impact it would have on those fundamental rights.

The EU's Copyright Directive says copyright owners can obtain a court order against intermediaries whose services are used for piracy. But the E-Commerce Directive says that ISPs are generally not responsible for the activity of customers and that member states must not put ISPs under any obligation to police illegal activity on its service.

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