Belgian Court Says That ISPs Must Not Pay a Copyright Levy to Collective Societies

On March 13, 2015, the Distric Court of Brussels decided that Internet Service Providers (ISPs) should not pay a copyright levy for communicating to the public the repertoire of SABAM, the Belgian association of authors, composers and publishers and the largest Belgian collective management organisation (CMO).
In 2011, SABAM sought to obtain the payment of a copyright levy from Belgian ISPs, including Belgacom, Telenet and Voo, for communicating to the public its repertoire. SABAM claimed that ISPs communicate to the public its repertoire without authorisation. SABAM demanded 3.4 percent of the ISPs' annual user subscription fees as a compensation for piracy committed by the ISPs' users. 
As requested by law, SABAM informed the Economic Federal Public Service (SPF Economie), the administrative authority in charge of overseeing CMOs' activities, about its request to the ISPs. The SPF Economie issued a negative opinion regarding SABAM's proposed levy. After some inconclusive negotiations and an initial action started by SABAM against the ISPs but rejected on procedural grounds, the Belgian Administration brought an action against SABAM before the Court of Brussels for obtaining a judgment declaring the proposed levy illegal. Brutele, Belgacom and Telenet joined the litigation as voluntary intervenors.
The District Court of Brussels ruled that the demand of SABAM was contrary to the present legislation. The Court noted that ISPs are neutral internet intermediaries with a passive and technical role and do not communicate to the public SABAM's repertoire. According to the EU e-Commerce Directive, ISPs are classified as mere conduits that are not liable for the information they transmit.
SABAM is considering whether to appeal this decision. According to SABAM, the European Court of Justice frequently “stressed that the economic benefit that someone has from relaying works, is often crucial for the decision if this is an act of communication to the public that falls within the exclusive right of the author.”
The decision No. 13/12839/A of the Disctrict Court of Brussels is available here (French only).
The author would like to thank Axel Beelen for some of the background information included in this blog post. Mr. Beelen is a Belgian lawyer and blogger and can be reached here.

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