Test-Achats, a Belgian consumer organization, filed copyright infringement claims against four leading music companies for their use of technological protection measures on various CDs.

Test-Achats argued that the measures prevent consumers from making their own private copies of the copyrighted works as well as from listening to CDs on certain systems with audio devices such as computers and DVD players. Test-Achats also claimed that the music companies are infringing an alledged right of the consumer to make private copies and sought a general order to cease the aforementioned measures under penalty of a fine.

According to Article 22.5 of the Belgian Copyright Act (June 30 1994), where a "work has been legally published, the author cannot oppose the reproduction of audio and audiovisual works within the 'family circle' and solely intended for use within that circle". A similar provision exists with regards to neighbouring rights.

The music companies argued that art. 22.5 of the Belgian Copyright Act is merely an exception to copyright protection and that an exception can be used as a defence in case of an action of the copyright owners against copying but cannot be used to enforce a right to private copying. This means that the exception does not give the consumer a right to demand from copyright holders that they ensure that private copies can always technically be made.

The question thus arose whether consumers enjoy a right to make private copies, as claimed by Test-Achats or alternatively that art. 22.5 of the Belgian Copyright Act is merely an exception to copyright of the author, as claimed by the music companies.

Test-Achats also claimed that consumers have an enforceable right to make private copies because of the existence of a levy on digital reproduction hardware.

As the EU Directive on Copyright and the Information Society (2001/29/EC) expressly allows for the use of technical protection measures, it was highly questionable whether Test-Achats would succeed in its claim.

Similar actions were already heard in France: the French courts ruled in different manners: when actions were brought to the court on the contractual basis of non-conformity of the CD’s with a "normal" product, the courts ruled in favour of the consumers; but when the consumer based its action on copyright infringement, as Test-Achats did in Belgium, the French court ruled in favour of the copyright holders (see Court of First Instance of Paris, 30 april 2004. That decision is still subject to appeal).

In its judgement of 25 May 2004 the President of the Court of First Instance of Brussels ruled in favour of the music companies: he confirmed that private copying is only an exception to the copyright of the author: according to the President, the exception only means that it is not necessary for a consumer to obtain the authorisation of the right holder in order to make a private copy, and the legal consequence of this exception is that making a private copy can not be considered as an infringement of copyright. The private copy exception only grants an immunity to the maker of the private copy, states the Court, but this does not give the consumer the right to demand from the copyright holders that a private copy always technically can be made.

Also, Test-Achats’ claims that consumers have an enforceable right to make a private copy, because of the existence of a levy on digital carriers or recording equipment was rejected. since the levy is only a compensation for the existence of the exception.

Test Achats however did lodge an appeal against this decision and the case has been heard for pleadings a month ago. A decision of the Court of appeal is expected soon.

In the meantime, a Belgian draft Act (3-1073/1) regarding the implementation of the EU Directive on Copyright and the Information Society (2001/29/EC) is pending before the Belgian Senate. According to this draft as discussed in the Senate (and which has already been approved by the first chamber of the Parliament), technological protection against measures will be authorized. However, the draft also foresees the possibility for the King to impose to copyrights holders an obligation to take voluntary measures as to allow consumers to benefit from their "right" to make private copies. In case of non-compliance with such obligation, consumers would be entitled to file a claim as to enforce their "right" to make a private copy.

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