Brussels Court of Appeal Applies Belgian Copyright Law Despite Contrary Guidance by Court of Justice of European Union

• 02/06/2017
• Articles

On 12 May 2017, the Brussels Court of Appeal (the “Court”) handed down a judgment following a preliminary ruling from the Court of Justice of the European Union (the “ECJ”) in a dispute between Hewlett-Packard Belgium (“HP”) and Reprobel. The latter, a Belgian copyright management company, had ordered HP to pay a levy for the sale of multifunctional printers. Since both parties did not reach an agreement on the amount due, HP brought an action against Reprobel. In this context, the Court had referred several questions to the ECJ on the interpretation of Articles 5(2)(a) and 5(2)(b) of Directive 2001/29/EC on the harmonisation of specific aspects of copyright and related rights in the information society (“the InfoSoc Directive”).

On 12 November 2015, the ECJ ruled that the combined levy system of fair compensation granted to right holders for specific reproductions of their works under Belgian law (i.e., the reprography and private copying exceptions) was incompatible with the InfoSoc Directive (see, VBB on Belgian Business Law, Volume 2015, No 11, p. 13).

The case went back to the Court which held that Belgian law had to be applied insofar as it could be interpreted consistently with the InfoSoc Directive. Conversely, it added that non-consistent Belgian legislation could only be set aside if the InfoSoc Directive had direct effect. The Court found that the InfoSoc Directive did not have such direct effect and, therefore, did not give the Court power to rule contra legem.

As a result, the Court departed from HP’s argument that Belgian legislation compelling it to pay a lump-sum must not be applied as it entailed overcompensation in violation of the InfoSoc Directive. Rather, the Court held that HP remained liable for payment of the lump-sum to Reprobel for its multifunctional printers.