Recital 72 Versus Employment Agreements

• Published date: 10 March 2023
• Subject Matter: Employment and HR, Intellectual Property, Contract of Employment, Copyright
• Law Firm: Timelex
• Author: Pedro Demolder and Siyanna Lilova

Since 1 August 2022, Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC ('DSMD') has been transposed into book XI of the Belgian Economic Law Code ('ELC'). The law entered into force immediately, providing in its Article 99 that the rules apply to works and performances protected by copyright or related rights on or after 7 June 2021. The latter being the date on which the DSMD should have been transposed by Member States.

What are the new rules for employment contracts?

This blog aims to shine a light on some of the more underexposed provisions of the DSMD, specifically in their application to employment agreements. These are the provisions of Chapter 3 of the DSMD relating to Fair remuneration in exploitation contracts of authors and performers. Five rights in particular warrant attention:

article 18 DSMD	A right to fair and equitable remuneration	articles XI.167/1 and XI.205/1 ELC
article 19 DSMD	A right to transparency	articles XI.167/2 and XI.205/2 ELC
article 20 DSMD	A right to ask for remuneration reviews based on a success clause	articles XI.167/3 and XI.205/3 ELC
article 21 DSMD	The inclusion of specific alternative dispute resolution procedures	n/a
article 22 DSMD	A right to revoke exclusive licenses and transfers of copyrights	articles XI.167/4 and XI.205/4 ELC

In relation to Belgian employment agreements, the first three rights are the most relevant. The fourth right relating to the inclusion of specific alternative dispute resolution procedures was not transposed because the Belgian legislator deemed that this is already sufficiently provided for in Belgium. The fifth right to revoke exclusive licenses explicitly excludes its application in an employment context (article XI.167/4, al. 4, 3' and XI.205/4, al. 4, 3' ELC).

We note two further particularities in relation to these new provisions:

• First, the DSMD provides that all rights, except the right to fair and equitable remuneration, are mandatory law However, the Belgian legislator chooses to make all the rights under Chapter 3 mandatory law, thus including the right to fair and equitable remuneration.
• Second, the DSMD excludes the application of the new rights in relation to the subject matter of Directive 2009/24/EU relating to computer programs (the 'Software Directive'). Essentially, this means that neither the source code, nor the object code protected by copyright fall under this regime.

However, we note that in the BSA-case (CJEU 22 December 2010, C-393/09), the CJEU decided in relation to graphic user...