European Court of Justice (CJEU) For the first time, he was asked to clarify about the European Union "Digital Single Market Copyright and Related Rights Directive2019/790" ( "DSMorder" ) The first18prescribed "Appropriate and appropriate remuneration" Limitation applicability of rights. The Belgian Council of State wants to know, A Belgian law stipulates that a fixed lump sum payment by an employer to a performer means that the employer has transferred copyright rights, Whether it infringes upon these performers according to "DSMorder" obtained "Appropriate and proportionate remuneration" The right of. The Council of State also asked the Belgian Constitutional Court: Whether a transfer without the consent of the performer is constitutional?

Background introduction

2016years, National Orchestra of Belgium (NBO) (State orchestra) Talks were opened with the musicians' union, To reach a global agreement on the transfer of rights and the use of remuneration related to musicians. The issue had previously been dealt with on a case-by-case basis. 2020years, No agreement has been reached, when32When a musician filed a complaint with the Court of First Instance in Brussels, Contradictions continue to intensify, The court successfully blocked itNBORelease a variety of public recordings on different platforms. therefore, NBORequests the Belgian Government to establish by royal decree the right of performers to remuneration for the use of their rights. 2021years6month4day (namely "DSMorder" One business day prior to the implementation date) , The Belgian Government Gazette published a report on BelgiumNBORoyal Decree on the rights of artists ( "Laws and decrees" ) , this "Laws and decrees" Effective on the same day.

According to the "Laws and decrees" The first2article, NBOThe artistic staff of the Orchestra are deemed to have transferred to their employer all rights relating to performances within the scope of their service to the Orchestra. The first3Article explicitly states that, Such transfers include the right of communication, The right to copy and distribute. It added, The effect of such assignment is worldwide and for the full duration of the said rights. Remuneration for completion of work tasks includes the total for each service24An annual allowance in Euros, The annual stipend equivalent to the entire orchestra is600Euro (25Item of service/years) , And fromNBOA percentage of the net income derived from the benefit of the relevant rights.

It is worth noting, the "Laws and decrees" Clearly stated in the preamble, With an eye to "Specific characteristics of the field, UseNBOIncome arising from musician related rights and relatedNBOThe relevant rights compensation that matches the corresponding size and legal status" , It stipulates "Appropriate and proportionate remuneration" .

Legal question

Musicians are challenging the law to the Belgian Council of State. They think, the "Laws and decrees" violated "Constitution of Belgium" The first16Strip sum "European Convention on Human Rights" The first1Article provides for fundamental property rights. They point out that, On the basis of "Economic law of Belgium" (CEL) The firstXI. 203article, Copyright related rights can only be based on "Civil code" Make a transfer, This means the performer's consent is required. In addition, They think, CELThe firstXI. 205§4Point out, Performers who are employed under labor contracts or regulations may transfer their intellectual property rights to their employers (Provided that such transfers are expressly provided for and fall within the scope of the contract or articles of association) , This means that these rights can only be transferred by contract or collective agreement. therefore, Such transfers are subject to the consent of the right holder. the "Laws and decrees" Unilateral act of, They are deprived of their rights without their consent.

In addition, Musicians claim, The decree was violated "DSMorder" The first18Article to No23article, These provisions set out the right of authors and performers to receive fair remuneration within the framework of the use contract. According to #18clause, If the author or performer transfers the exclusive right to use their work or performance, They are entitled to "Appropriate and corresponding" Reward of. They think, Belgium "Laws and decrees" The remuneration specified in this Article is inconsistent with the provisions of this article. The Belgian government argues, "DSMorder" Not applicable to having "Civil servant" Status musician. In fact, NBOMusicians are not employed on a contractual basis. Musicians disagree, Claims that they are considered "DSMorder" Scope of employees, It is therefore not explicitly excluded from its scope of application.

Preliminary question from the Belgian Council of State

2023years8month31day, The Belgian Council of State has submitted several preliminary decisions to the European Court of Justice and the Belgian Constitutional Court.

The Council of State asked the Constitutional Court, willCELThe first205§4The article is interpreted as a permissible statute (Such as this "Laws and decrees" ) In the absence of the rights holder (The performer in the case) Whether the transfer of the relevant rights with consent is a violation "Constitution of Belgium" The first16Strip sum "European Convention on Human Rights" The first1Article provides for fundamental property rights.

The Council of State has also turned to the European Court of Justice, Ask if will "DSMorder" The first18Article to No23Article is interpreted as, Exclusions are determined by law or regulation "Civil servant" The act of transferring relevant rights to a performer of identity, If such transfer falls within the scope of contractual regulations. In addition, The Council of State referred a second question on the transitional law to the European Court of Justice. "DSMorder" The first26clause, It is applicable to2021years6month7As of today, all works and other objects in the field of copyright protected by domestic law, Do not affect2021years6month7Any act concluded before the date and rights acquired. therefore, The Council of State wants to know "Concluded act" and "Acquired right" Whether the two terms should be construed to include2021years6month7The transfer of relevant rights determined by legislation before the date. As mentioned above, this "Laws and decrees" Since the2021years6month4Effective from today, According to the musicians, This proves that the Belgian legislature is trying to circumvent its application "DSMorder" .

now, This delightful prologue has touched on double legal lines, One cannot wait to hear about the interaction between the Belgian Constitutional Court and the European Court of Justice. Their answers to the Council of State's questions will set the tone for the end of this unfinished symphony. (Be compiled fromwww. mondaq. com)

TRANSLATORS: Wu Xian　proofread: Liu Peng



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