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Antwerp Commercial Court finds that Bhaalu cannot lawfully rely upon the “private copy” exception enshrined in the Belgian Copyright Act

Antwerp Commercial Court finds that Bhaalu cannot lawfully rely upon the “private copy” exception enshrined in the Belgian Copyright Act

Antwerp Commercial Court finds that Bhaalu cannot lawfully rely upon the “private copy” exception enshrined in the Belgian Copyright Act

17.12.2014

Right Brain Interface NV is a young technology company that has created a remote DVR (digital video recording) storage service called “Bhaalu”. In essence this service allows its subscribers to record the television programs they can watch according to their TV channels’ subscription and to store these programs on servers owned by the unincorporated association of Bhaalu users (“in the cloud”). This way, Bhaalu users can watch TV programs on demand up to 3 months after they have been aired.

This article was co-written by Valerie Vanryckeghem

This article was co-written by Valerie VanryckeghemThis system is also called “Collaborative Video Recorder” (or CVR) given that the users are basically sharing the cost of certain common components of the CVR hardware, without it being technically possible for them to share or transfer content with other users.

Naturally, Bhaalu’s entry on the Belgian market has led to a great deal of opposition by Belgian broadcasters. This has led Medialaan, VRT, and SBS Belgium to sue Right Brain Interface NV before the Commercial Court of Antwerp on grounds of their right to exclusive reproduction and communication enshrined in the Belgian Copyright Act.

The broadcasters asserted that Right Brain Interface NV should have obtained the broadcasters’ prior consent because they had an exclusive reproduction right. But Right Brain Interface NV invoked the “private copy”-exception provided by the Belgian Copyright Act on grounds that the user may only (i) use Bhaalu if he or she has subscribed to the particular channel, (ii) watch his or her own recorded programs, and (iii) watch his or her recorded programs within the “family circle”.

The Antwerp Court first concluded that it was indeed the Bhaalu user—and not Bhaalu itself—who makes a “private copy” in the sense of the “private copy”-exception under the Belgian Copyright Act.

Then the Court ascertained that the television signals originating from TV Vlaanderen and Telenet constituted the source of Bhaalu’s
recording capacity. These television signals needed to be decrypted and thus also copied in the Bhaalu datacenter in order for Bhaalu to be able to provide its CVR service to its users. However, Right Brain Interface NV did not obtain the prior consent from TV Vlaanderen and Telenet to decrypt these television signals.
Therefore, the Court ruled in favor of the broadcasters and declared that Right Brain Interface NV has infringed the broadcasters’ copyrights because it copies television signals from an illicit source and communicates the copied signals to the public, even if the users/subscribers would have lawfully received the broadcast through a television receiver. Finally, Right Brain Interface NV asserted that it merely provides the equipment for making the “private copy”, so it should not be categorized as a service provider. But the Court rejected Right Brain Interface NV’s argument. The Court found that Right Brain Interface NV’s activities in the Bhaalu system were inextricably linked to the infringing acts and that the Bhaalu devices could not function without the interventions of Right Brain Interface NV. Therefore, the Court ordered Right Brain Interface NV, as the intermediary whose services were used for such infringements, to cease its activities under penalty of a fine of EUR 1,000 per week and per user.


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