Protection and ownership

Copyrightable works

What works are eligible for copyright protection in your jurisdiction?

Copyright protection is reserved for works that are ‘copyrightable’ and that meet the originality requirement.

Belgian copyright law does not define or enumerate the types of work that are eligible for copyright protection (copyrightable). Hence, reference can be made to Article 2(1) of the Berne Convention, for the Protection of Literary and Artistic Works, which refers to ‘literary and artistic works’ as including:

every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

It is generally accepted by case law and legal scholars that copyright protection is reserved for works that have been expressed in a concrete form (whether tangible or intangible) and thus cannot be awarded to mere ideas, procedures, methods of operation or mathematical concepts as such (see also Article 2(1) of the Berne Convention, read in conjunction with Article 2 of the World Intellectual Property Organisation Copyright Treaty).

Although Belgian law does not define ‘originality’ either, several references are made to “the author’s own intellectual creation” in relation to photographs, databases and software. 

It follows from the European Court of Justice’s (ECJ) landmark judgment in the Infopaq case that the notion of originality must be given an autonomous and uniform interpretation throughout the European Union as meaning “its author’s own intellectual creation” (C‑5/08, Infopaq International A/S v Danske Dagblades Forening, July 16 2009, § 37).

The ECJ developed the concept by stating that an intellectual creation is an author’s own “if it reflects the author’s personality”. That will be the case “if the author was able to express his creative abilities in the production of the work by making free and creative choices”, “stamp[ing] the work created with his ‘personal touch’” (“his personality”) (C‑145/10, Painer v Standard VerlagsGmbH, December 1 2011, § 88-89, 92 and 94).   

The Belgian courts apply this ECJ case law quite consistently.  

Are there any special provisions for the protection of non-artistic works (eg, software and databases)?

The Belgian Code on Economic Law does indeed provide special provisions for non-artistic works such as software (Book XI, Title 6), sui generis databases (Book XI, Title 7) and semiconductor topographies (Book XI, Title 8).

Are any works explicitly excluded from copyright protection?

Yes. Article XI.172 of the Belgian Code on Economic Law excludes from protection official government acts. This article also states that speeches made in deliberative assemblies, in public hearings of the courts or in political meetings may be freely reproduced and communicated to the public, but that the author alone has the right to publish these speeches separately.  

Related IP rights

Can copyrightable works be protected by other IP rights (eg, trademarks and designs)?

It is possible to cumulate copyright, design, trademark and patent protection for one work.

The possibility and the extent of such cumulation will depend on the nature of the object and the fulfilment of the legal requirements for (each of) the cumulated regimes. In other words, cumulation is possible if and to the extent that all the legal requirements for the application of the different types of protection are (individually) met.

Regarding copyright and (registered) design protection, it should be noted that cumulation is not only allowed but in fact compulsory in Belgium under statute and EU case law (see Recital 8 of the Community Designs Directive (98/71/EC), Article 17 of the Community Designs Regulation (6/2002) and the ECJ decision in Flos SpA/ Semeraro Casa e Famiglia SpA (C-168/09, January 27 2011).

IP rights can also be cumulated with protection under unfair competition law (Cass May 29 2009, Arr Cass 2009, 1496).

An IP infringement will usually automatically amount to an act of unfair competition, while the rules on unfair competition can also be used as a ‘safety net’ against the copying of objects that are not protected by IP law.

In this respect, the Supreme Court has clarified that copying is not prohibited in itself by unfair competition law. Copying can be illegitimate under unfair competition law only if it is accompanied by “attended circumstances” contrary to fair market practices (Cass May 29 2009, Arr Cass 2009, 1496). 

Ownership

Eligibility

Who may own copyright in a work?

Article XI.170 of the Belgian Code on Economic Law states that copyright belongs from the start to the natural person who has created the work. Other persons (legal or natural) may come into possession of (the economic) copyrights as a result of a transfer.

Joint and collective ownership

What rules and restrictions govern the joint or collective ownership of a copyright work?

Article XI.168 of the Belgian Code on Economic Law states that when copyright is indivisible, exercise of the right shall be governed by agreement. In the absence of an agreement, none of the authors may exercise the right in isolation, except following a court decision in the event of disagreement. However, each author may take action, on his or her own behalf and without the intervention of the other authors, against any infringement of copyright, and may claim damages on his or her own behalf. A judge may, at any time, give the authorisation to publish a work subject to the measures that he or she deems necessary; he or she may order, at the request of the author who opposes the publication, that the author should not participate in either the costs or in the profits of the exploitation, or that the author’s name should not be shown on the work.

Article XI.169 of the Code on Economic Law states that when work has been created by two or more persons and in which the individual contribution of each of the authors can be clearly identified, those authors may not, unless otherwise agreed, collaborate with other persons regarding that work. The authors do, however, have the right to exploit their contribution separately, provided that this exploitation does not endanger the mutual work.

Employee and commissioned work

What rules and restrictions govern the ownership of copyright in a work created in the course of employment (including works by employees and commissioned works by independent contractors)?

Under Belgian law the employee or the author of a commissioned work will always be the initial holder of the copyrights in the works created in the framework of his or her employment or the assignment. The rights are not automatically assigned.

The employer can acquire the rights by expressly providing for an assignment in writing. The same applies for the person who commissioned a work on condition that this person is active in a non-cultural sector or in advertising. Article XI.167 §3 of the Belgian Code on Economic Law imposes a looser regime for these assignments by declaring inapplicable certain specific obligations that must be respected in the framework of regular assignments.

Other rules apply to, among other things, software and databases. The rights in these types of work are presumed to be held by the employer until the contrary is proven.

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