On 6 March 2025, the Court of Justice of the European Union (CJEU) delivered a ruling in a case involving the Belgian State and the Orchestre national de Belgique (ONB). The ruling addresses the permissibility of a compulsory transfer of neighbouring rights, and the interpretation of several articles of EU directives on copyright and related rights in the Digital Single Market. The ruling potentially impacts copyrights of employers in the Netherlands.

Background

On 1 June 2021, the Belgian State adopted a royal decree requiring that all rights relating to the carrying out or exploiting of performances by orchestra members be assigned to the ONB. The ONB musicians initiated proceedings against the Belgian State, arguing that the royal decree infringed EU law, especially on fair remuneration and transparency for authors and performers.

Preliminary questions

During the proceedings, the Belgian State argued that the royal decree was necessary for the ONB to function properly. However, the musicians contended that the decree violated their rights under Articles 18 to 23 of Directive 2019/790, which set out principles of appropriate and proportionate remuneration, transparency obligations, and contract adjustment mechanisms.

The CJEU's Advocate General Szpunar issued an opinion on 24 October 2024.

CJEU ruling

The CJEU ruled that the exclusive rights of performers preclude national legislation allowing neighbouring rights of performers carried out in the context of their service to be assigned to and exploited by their employer by means of a regulatory act, without their prior consent. The CJEU emphasised that the exclusive rights of performers to authorise or prohibit the reproduction, rental and lending, fixation, communication to the public and distribution of their performances must be respected, and that any assignment of these rights requires the performers' prior consent. According to the CJEU, national legislation that mandates the assignment of neighbouring rights of performers without their prior consent is only permitted if the assignment is covered by one of the exhaustive exceptions or limitations laid down in the directives. Neither Directive 2001/29 nor Directive 2006/115 contains any exception permitting the assignment of all rights relating to the performance and exploitation of performances, such as that set out in the royal decree.

Potential impact

The ruling potentially impacts employers' copyrights in the Netherlands. Under article 7 of the Dutch Copyright Act, the employer is considered the author of any work produced by employees during the course of their employment. The employee does not have to consent to this. Also, article 7 does not mention a remuneration to employees for works made in the course of their employment (this is assumed to be part of the employee's salary).

The ruling is generally limited to performing artists, which are always individuals (legal entities are recognised as copyright holders in other pieces of EU legislation). So whether the ruling has direct consequences for the copyrights of employers in the Netherlands remains uncertain. Nevertheless, it is advisable for employers to incorporate clear provisions for the effective transfer of copyrights (and generally all IP rights to work product created in the course of employment) in their contracts with employees.