BELGIUM Law and Practice Contributed by: Sven Demeulemeester, Willem-Alexander Devlies and Daan Buylaert, ATFiELD
The author acquires both economic rights (eg, the right to reproduce, distribute and communi - cate the work to the public) and moral rights (for example, the right to protect the integrity of the work) in the work. Such rights arise automatically upon the creation of the work, meaning that no registration or other formalities are required. The duration of copyright protection in Belgium lasts for 70 years after the author’s death. In cases of alleged copyright infringement, the defendant often disputes the copyright’s validity, emphasising that the burden of proof rests with the author (known as “stelplicht” or “charge de la preuve” ). In addition, the accused party may try to invoke one of the exemptions listed in Article XI.189 et seq. CEL (such as the parody exemp - tion), which stem from EU law. These exemp - tions are exhaustively listed. There is no open- ended fair use defence, such as under US law. Database Rights in Belgium A database may be protected under Belgian copyright law through the original selection or arrangement of data included in the database (Article XI.186 CEL). However, copyright protec - tion does not extend to the underlying data. In addition to copyright protection, databases may be granted sui generis protection under Title 7 of the CEL (Articles XI.305-318 CEL), which also implements EU law. To qualify for this sui generis protection, the database must involve a substantial qualitative or quantitative investment in either the obtaining, verification or presentation of the contents. The protection grants makers of databases the exclusive right to prevent the extraction and/or re-utilisation of all or a qualitatively or quantitatively substantial part of the contents of their database.
Sui generis protection of databases applies automatically upon completion of the database, and lasts 15 years from the first day of the year following the date of completion. Through sub - stantial updates, the term of protection may be extended. Football competition calendars may qualify as a database under the Database Directive. How - ever, they are not protected by copyright if their creation is dictated solely by technical consid - erations, rules or constraints, which leaves no room for creative freedom. Nor do they ben - efit from sui generis protection if the substan - tial investment is directed only at generating the data itself (CJEU 1 March 2012, C-604/10, Football Dataco and Other c/ Yahoo! UK Ltd and Others). 5.3 Image Rights and Other IP Legal Recognition for Image Rights in Belgium There is no explicit statutory provision that estab - lishes the right to one’s image. Image rights are instead protected under the umbrella of privacy law, the copyright rules on portrait rights (Article XI.174 CEL – reproducing or sharing a portrait requires the consent of the depicted individual), general tort law and sometimes even crimi - nal law (eg, Article 231 Criminal Code – public assumption of a false identity). In essence, image rights entail that the individual must consent before their image can be cap - tured, displayed or reproduced. The individual can assert this right on a photo or video in which they are recognisable and which is taken or used without their consent, or when an authorised image is used for unauthorised purposes (Voorz. Rb. Brussels 22 October 2009). Consent need not be express and may instead be implied (eg, Rb. Brussels 29 October 2001 AM 2002, 184 –
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