EUPillar SA RTL Belgium, CLT-UFA, Institut belge pour la sécurité routière v. C. Di Dio

Summary

Appeal against decision of Brussels Commercial Court, 2012-12-18 (not in database) The defendant, Mr. D., is a driver instructor who participated in a TV programme broadcast on the RTBF. Afterwards, he approaches RTL Belgium to propose a new type of television programme, consisting of short comedy sketches on the behaviour of people on the road. The ultimate aim is to raise awareness of the rules of the Belgian traffic code. He meets with representatives of RTL Belgium in September 2009 and May 2011 and submits a few sketches. In the end, the project does not go through. However, from May 2012 onwards similar sketches are broadcast on RTL-TVi, in collaboration with the Belgian Institute for Road Safety (IBSR). The sketches can also be view on its website. On 24 August 2012, Mr. D. brings an action for copyright infringement before the president of the Brussels Court of First Instance in summary proceedings. The president of the Court of First Instance finds that the appellants have infringement the copyright held by Mr. D. and must cease the broadcasting of the episodes. The appellants filed an appeal to the Court of First Instance. Two of the three appellants, RTL Belgium and IBSR, are entities incorporated in Belgium. There is no foreign element in the claim opposing those two appellants and Mr. D. Belgian law is applicable. The third appellant, CLT-UFA, is a company incorporated in Luxembourg. CLT-UFA argues the laws of Luxembourg are applicable, since the episodes are also broadcast in Luxembourg and visible on its website. Art. 5 of the Berne Convention guarantees the rights of authors outside the country of origin of the works. Art. 5(2) provides that the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed. However, the Court notes that the Belgian author does not seek protection in Luxembourg, but on Belgian territory. Pursuant to Art. 5(3), protection in the country of origin is governed by domestic law. Even for the application of Art. 5(2), the “country where protection is claimed” must not be interpreted as the country where the act of broadcasting takes place (lex loci delicti commissi), but as the country of the intended audience. The short episodes are meant to inform Belgian drivers on the Belgian traffic code. CLT-UFA has a Belgian market for those episodes. If the Berne Convention is not sufficiently clear and does not allow to solve the conflict of laws, the Court must apply its national law. In this case, that is the Rome II Regulation on the law applicable to non-contractual obligations, in particular the general rule of Art. 4(1): the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs, irrespective of the country in which the event giving rise to the damage occurred […]. While it is true that Art. 8 lays down a specific rule for infringement of intellectual property rights (“the law applicable to a non-contractual obligation arising from an infringement of an intellectual property right shall be the law of the country for which protection is claimed”), this article does not solve the conflict in the case of complex infringements where the fault and the damage are situated in different countries. The damage alleged by the defendant occurred in Belgium. The applicable law under the Rome II Regulation is also Belgian law.