Code de droit économique, Articles XI.228/2 to XI.228/9, Online Content-Sharing Service Providers (Article 17 of the Copyright Directive)

Article XI.228/2 of the Code de droit économique defines an online content-sharing service provider as the provider of an information society service whose main purpose, or one of whose main purposes, is to store and give the public access to a large amount of works or other protected subject matter uploaded by its users, which it organizes and promotes for profit.

Non-profit online encyclopedias, non-profit educational and scientific repositories, open-source software development and sharing platforms, electronic communications service providers, online marketplaces, business-to-business cloud services and cloud services that let users upload content for their own use are not online content-sharing service providers.

Under Article XI.228/3, paragraph 1, such a provider performs an act of communication to the public when it gives the public access to works or performances uploaded by its users. Under paragraph 2, an authorization the provider obtains also covers the acts of its users, as long as they are not acting on a commercial basis or their activity does not generate significant revenues.

Under Article XI.228/5, paragraph 1, if no authorization is granted the provider is liable for unauthorized acts of communication to the public unless it shows that it made its best efforts to obtain an authorization, made its best efforts, in accordance with high industry standards of professional diligence, to ensure the unavailability of specific works for which rightholders gave it the relevant and necessary information, and, in any event, acted promptly on a sufficiently substantiated notice from rightholders to block access or remove the works and made its best efforts to prevent their future upload.

Under paragraph 2, a new provider whose services have been available to the public in the European Union for less than three years and whose annual turnover is below EUR 10,000,000 only has to show its best efforts to obtain an authorization and prompt action on a sufficiently substantiated notice, and if its average monthly unique visitors exceed five million it must also show its best efforts to prevent further uploads of the notified works.

Article XI.228/6 provides that cooperation with rightholders must not prevent the availability of uploaded works that do not infringe copyright and related rights, including works covered by an exception or limitation, and that the chapter gives rise to no general monitoring obligation.

Article XI.228/7 requires providers to give rightholders, on request, adequate information on how their cooperation practices work and, where licenses exist, on the use of the covered works, and to tell users in their general terms and conditions that they may use works under exceptions and limitations.

Article XI.228/8 requires an effective and quick complaint and redress mechanism for users in disputes over blocked or removed uploads, with complaints handled without undue delay and decisions to block or remove subject to review by a natural person. Article XI.228/9 requires providers, for activities directed at users or rightholders with their seat or habitual residence in Belgium, to name two or more mediators with whom they are prepared to work on out-of-court settlement of such disputes.

Article XI.228/3, paragraph 3 disapplies the liability scheme of Article XII.19, paragraph 1 to situations covered by the chapter. The Act of 21 April 2024 replaced that reference with a reference to Article 8, paragraph 1 of Regulation (EU) 2022/2065. The Federal Public Service Economy lists Articles XI.228/3 and XI.228/5 to XI.228/9 as the transposition of Article 17 of the Copyright Directive by the Act of 19 June 2022.

The Federal Public Service Economy states that most provisions of the Act came into force on 1 August 2022. The Act enters into force on the day of its publication in the Moniteur belge, except for listed provisions that do not include these articles. The Chamber of Representatives adopted the text in plenary session on 16 June 2022, identical to the text adopted in committee in second reading.