In January a Bill was presented in the Chamber of Representatives (Lower House) containing provisions to enhance copyright protection on the Internet, including a graduated response system. Bill 53/1120/01, sponsored by members of the French-speaking Liberal Party (Mouvement Réformateur). If it passes, Belgium would become the third European country to pass GR legislation. However, the Bill has provoked a strong campaign by the so-called Net Users’ Rights Protection Association (NURPA). Anti-copyright blog EDRI claimed on 23 March 2011 that the Bill’s sponsors have agreed to suspend their proposal for an indefinite period.
The Bill proposes that ISPs would be required in their contracts with subscriber to state that creative works are protected by copyright, to warn of the negative cultural and economic effects of piracy and to describe the GR provisions of the Bill (Art. 5). The contract would also advise the subscriber as to the need for securing his Internet access against intrusion and point the subscriber to a web site, to be set up under the Bill by a newly-formed Council for the Protection of Copyright on the Internet, listing sources of licensed content. The Bill appears to impose extended collective licensing for the communication to the public of works online, on the model of cable retransmission right (Art. 8).
The key provision on GR is Art. 14, which prohibits subscribers from using their Internet access for the purposes of up- and downloading of protected works or services without licence. It is envisaged that investigative officers authorised by the State will detect infringements and require disclosure of name and address details from service providers. On the first infringement, the officer sends a warning letter to the subscriber. In case of a second infringement within 6 months, the officer sends a second letter offering the subscriber the opportunity to pay a fine to conclude the case (Art. 17). The subscriber can appeal to the Minister – so this is an administrative, rather than a judicial process.
In the event of a third infringement within 2 years, the officer reports the matter to the Public Prosecutor, who may take such action as he thinks fit. The court may impose a fine of 100 to 1,000 Euros, and, depending on the circumstances of the case, can impose a limitation on the subscriber’s Internet access. It appears that what is contemplated is that the ISP would be required to reduce the subscriber’s bandwidth to a level that would render file-sharing difficult. If the subscriber moves to another ISP, the new ISP must respect the limitation imposed. If there is yet another infringement within a period of 3 years, the maximum fine is doubled and Internet access may be suspended altogether (but leaving intact any telephony or television services). Failure by an ISP to respect the terms of a limitation or suspension of access may be visited with a fine of up to 2,000 euros.
The Council for the Protection of Copyright on the Internet would seem essentially to be an advisory body, receiving reports of cases and providing advice to Government – a much lighter structure than the French Haute Autorité.
Even if the blog reports are right, it is hard to imagine that we have heard the last of the Réponse graduée à la belge…
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