Only natural persons (individuals) who have created a work may enjoy the status of an author, even where an author is an employee. In this latter case, the economic rights may be assigned to the employer on the condition that such assignment is expressly agreed in writing and that the creation of the work falls within the scope of the employment agreement. However, there are some statutory presumptions, such as those regarding the assignment of economic rights in computer programs, that automatically favor employers (unless provided otherwise).
Title 5 (Copyrights and Neighboring Rights) also includes a rebuttable presumption of authorship; the author is presumed to be the person shown as such on the work by virtue of the mention of their name or the appearance of another sign that enables their identification.
Persons collaborating directly towards the creation of a work become co-authors. Their copyright is indivisible.
In these situations, the exercise of the right of co-authors is governed by agreement. Failing such agreement, no author may exercise this right in isolation, unless a court decision provides otherwise in case of a dispute. In situations in which the contributions of the authors may be individually identified, those authors may not, unless they agree otherwise, market their work in conjunction with new collaborators. However, they do share the right to exploit their contribution in isolation provided that such exploitation does not harm the joint work.
Contrary to the author's moral rights, which are, in principle and as a whole, non-transferable and inalienable, the economic rights are freely assignable, transferable and licensable (on an ordinary or exclusive basis), in whole or in part, in accordance with the CEL’s provisions.
Through the implementation of the DSM Directive, Belgian copyright law also introduced new rights for authors and performers:
- Every author or performer assigning or licensing their rights for exploitation has the right to an appropriate and proportionate remuneration (Article XI.167/1 CEL).
- Every author or performer assigning or licensing his/her rights also has the right to transparency. In particular, the person to whom the rights are assigned or licensed will have to provide information to the author or performer on a regular basis regarding the exploitation of the work (Article XI.167/2 CEL).
- Furthermore, authors and performers having assigned or licensed their rights can claim additional appropriate and fair remuneration from the party with whom they entered into a contract for the exploitation of their rights, or from the successors in title of such party, when the remuneration originally agreed turns out to be disproportionately low compared to all the subsequent relevant revenues derived from the exploitation of the works or performances (the so-called “best-seller clause”) (Article XI.167/3 CEL).
- Lastly, the authors or performers having assigned or licensed their rights on an exclusive basis have the right to revoke in whole or in part the license or the assignment of rights where there is a lack of exploitation of that work or other protected subject matter within the agreed term or, if no term was agreed upon, within a term determined in accordance with fair professional practices (Article XI.167/4 CEL).
In addition, the Belgian Act of June 19, 2022 implementing the DSM Directive also introduced a new Chapter 4/2 into Belgian copyright law. Chapter 4/2 is, however, not based on any of the provisions of the DSM Directive and is thus the result of a high degree of gold-plating by the Belgian legislator. In brief, pursuant to this new chapter, authors and performers of sound and/or audiovisual works will at all times retain their right to remuneration vis-à-vis streaming services for the communication to the public by such streaming services, even if the exclusive rights of the author or performer were already assigned or licensed to other contracting parties (such as producers or labels). Hence, the remuneration right will be directly payable by streaming platforms to the author or performer (albeit through their management organisations).
Chapter 4/2 received heavy criticism and has been challenged before the Belgian Constitutional Court by producers and streaming services through an application for annulment.