• General Introduction
• FAQ

Royal Decree of 17 December 2009 (Publication in the Belgian Monitor dated 23 December 2009) 
New tariffs will apply from 1 February 2010. In practical terms this means that these tariffs apply, in relation to retailers, to all purchases as from 1 February 2010 and for wholesalers to all sales carried out as from this same date.

(Tariffs are set out per appliance and before tax)

Text of royal decree click here

We would draw your attention to the fact that certain provisions included in the statute dated 10 December 2009 modifying, in relation to the regulations governing and controlling copyright management companies, the Act of 30 June 1994 concerning copyright and ancillary rights, relate directly to the management of private copying remuneration. The relevant articles are 3, 4 and 5 of the said statute of 10 December 2009 (Published in the Belgian Monitor on 23 December 2009).

For text of the statute click here

A small clarification regarding the Auvibel levy and foreign webshops

Auvibel imposes a ban?

The rumour is currently going around that Auvibel has imposed a ban on foreign webshops selling blank media (CD’s, DVD’s, etc) to Belgian end users.

This is totally untrue!

Insofar as is necessary, Auvibel wants to emphasise that it is not at all the intention to prevent or restrict the offer and sale of DVD-R’s and CD-R’s in Belgium through foreign webshops.

The aim of the cessation claims of Auvibel is only to get such sales to respect copyright laws.

This means that foreign webshops that offer media for sale on their websites must mention the levy for private copying for end users located in Belgium, and must actually charge this remuneration for media sales to end users located in Belgium, declare it promptly to Auvibel, and pay it to Auvibel.

Instead of blocking these activities, Auvibel has an objective interest in these sales continuing, but accompanied with the necessary and compulsory declarations.

Must I pay the remuneration for all media, even if I use them for my own videos?

Yes. The law has deliberately chosen (and also for practical reasons) to attach the right to a levy to all media that can be used for the reproduction of audio and audiovisual works, even in the specific case relating to this question, if the media are used for copying personal documents or works that are not protected by copyright.

The government justified this in the following way: "the application of the fixed fee technique means that the requested levy applies to everybody, and thus also to consumers who do not make illicit recordings (this is the case for example when videocassettes are only used for recording a family party). The fixed remuneration technique nevertheless seems to be the only practical possibility " (Gedr. St. Kamer, Report, 473/33-91/92, p. 266.)

Free flow of goods in Europe?

The application of the levy for private copying in Belgium does not breach article 28 of the EC Treaty, which deals with equal treatment measures and quantitative restrictions.

In a case similar to one of levy (1), on 2 February 2004 the Council of State judged in judgement No. 127.673 that:

• It has not been demonstrated that the disputed levy (2) is considerably higher than the fees in other member states. 
• The remuneration applies to all goods placed on the market in Belgium, imported or otherwise, and it thus has the same de jure and de facto effect on the trade of national products and on the trade of products from other member states. 
• The levy can thus hardly be considered as a measure that impedes trade between member states, whether or not directly, actually or potentially, according to the terms of the case law of the Court of Justice of the European Community.

(1) This case concerned the reprography levy charged by Reprobel, but the levy for provate copying charged by Auvibel is based on the same law. 
(2) In this case the levy for reprography.

The traders in question had in the past been importing blank disks into Holland, which they then offered for sale at computer fairs. However, they stubbornly refused to pay the legally-prescribed levy for private copying to Stichting de Thuiskopie, in spite of the demand notes issued by the latter.

In november 2004, during the computer fair “HCC dagen” in Utrecht, the fiscal and economic detection service FIOD/ECD, in close collaboration with Stichting de Thuiskopie, seized a very large consignment of blank disks which the traders aimed to sell there.

Partly in connection with this sequestration, the Judge in Summary Proceedings in The Hague ordered the traders in September 2005 to make a full statement to Stichting de Thuiskopie on all their imports of blank disks in the past. Moreover, they were forbidden on pain of a fine to continue importing blank media without paying the remuneration for private copying outstanding.

The Judge now confirms this sentence and has established the levies and fines outstanding in the past. In addition, the Judge stipulated that the Belgians must pay a fine of € 10,000 per day or € 1,000 per disk if they commit this offence again in the future.

Although this is a sentence in favour of Stichting de Thuiskopie, Auvibel adopts the same principles in such cases.

Sentence of 15 November 2006 (NL)
Stichting de Thuiskopie

The aim of the actions being taken by Auvibel is to call a halt to the illegal sale of blank media.

Auvibel had received various complaints about certain traders who were selling blank medias at the fair without paying the levies to Auvibel.

On the basis of the sentences handed down, Auvibel can invoke various principles that can be applied to other, similar situations.

True, not all questions have been answered, but it must be clear to the public concerned that Auvibel is keeping its eye on the elaboration of a coherent jurisprudence on the matter. No-one can doubt that this jurisprudence will provide clarity to those involved regarding the possible risks. The penalties are, as demanded by the legislators, not inconsiderable.