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'Family Circle' Exemption for Performances of Copyrighted Works


Contributed by Marx Van Ranst Vermeersch & Partners <>

April 27 2006

Articles 22(1), (3) and (5) of the Copyright Act prevent copyright owners (and owners of related rights) from opposing the private playing or performance of copyrighted works without payment of a fee within the family circle, or the reproduction of such works made in and for the family circle, at least in the case of reproductions on media other than paper.

The concept of 'private playing or performance in the family circle' has previously been the subject of differing decisions by Belgian courts. However, it has generally been accepted that the exception must be interpreted narrowly. A party given by a company for its employees or by an association for its members may not benefit from the exception, as it is not regarded as taking place within the family circle, even if the party is private and is exclusively accessible to and attended by the employees or members in question. However, a concert given in a home for the elderly falls within the definition of a 'performance in the family circle', as the residents may be considered to have developed intimate ties equivalent to family ties.

The Court of Cassation gave another interpretation of the concept in its decision of January 26 2006.

Five employees - one salesperson and four mechanics - worked for a car retailer. The mechanics worked in a workshop where music was played. This workspace was separate from the company's showroom, where the music could not be heard.

A collecting society, the Belgian Society of Authors, Composers and Publishers, claimed payment of performance rights in respect of the music played in the workshop.

The court found that four people who work together on a daily basis in an enclosed workspace accessible only to them and to one other employee could be regarded as having developed a tie that could be considered "private and intimate". It ruled that 'private communication in the family circle' should be taken to mean communication within a closed group of people related to each other, including a group with ties which are close enough to be considered equivalent to family ties. Such ties may be based on social rather than familial relations.

Although the court had previously ruled that family ties should not be limited to connections between relatives, this is the first time that the court has referred to social ties, and to the fact that personal connections developed in the workplace may be equivalent to family ties. Before this decision it had generally been agreed that the playing or performance of music in the workplace could not be considered as taking place within the family circle. The decision thus widens the concept.

However, the consequences of the decision should not be overestimated. The connections between the people in a position to hear the music played or performed must still be close enough to be considered equivalent to family ties: this is a very restrictive condition. The question of whether the exception applies will still depend on the facts of each case.