On 13 March 2015, the president of the Commercial Court of Brussels ruled that SABAM, the largest collecting society in Belgium, is prohibited from claiming for copyright payments from an Internet Service Provider (“ISP”).
SABAM had claimed for a payment of 3.4% of the ISP’s total annual internet users' subscription income. SABAM believed that ISPs are executing a communication to the public of copyright-protected works through their networks, comparable to f.i. satellite platforms. SABAM was summoned by the Ministry of Economics of Belgium, which is responsible for monitoring collecting societies. These societies are rarely summoned for infringing the Belgian Copyright Act, given they are legally obliged to enforce copyrights.
SABAM argued that the transfer of copyright-protected works from the server of the internet user putting the content on the internet via the user's ISP (“first ISP”) to the public or to the recipient user's ISP (“second ISP”) qualifies as a communication to the public. The same would be true for the second ISP retransferring the content to the recipient, its subscriber.
The Court decided that the first ISP does not qualify as “public” according to the European Copyrights Directive (“InfoSoc Directive”), as applied by the Court of Justice of the EU (“CJEU”). Regarding the second ISP, it merely transfers the communication to the public done by the internet user, who puts copyright protected content on the internet.
Furthermore, neither the first nor the second ISP changes the content or the communication as such. They merely offer the technical means to enable communication to the public by internet users.
SABAM also referred to the UPC Telekabel decision of the CJEU, which ruled that ISPs can qualify as intermediaries according to the InfoSoc Directive, meaning that cease and desist measures can be claimed against ISPs such as f.i. blocking a website containing copyright infringements. Therefore, according to SABAM, ISPs are considered to be executing a communication to the public.
The Brussels Court did not follow this argument, stating that the UPC Telekabel case did not qualify the acts of ISPs as a communication to the public, instead they were merely intermediaries enabling internet users to communicate to the public.
Finally, the Court ordered SABAM to cease and desist in its claim for copyright payments by ISPs.