Belgium: The Bhaalu case rolls on

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This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

In Belgium, a remote storage DVR called "Bhaalu" is currently the subject of a great deal of debate and controversy. The broadcasters (Medialaan, VRT and SBS) have launched proceedings against Bhaalu based on: (i) the Copyright Act; and (ii) the Flemish Decree of 19 July 2013.

The broadcasters are of the opinion that Bhaalu should have obtained their prior consent based on their exclusive reproduction right. Bhaalu, on the other hand, claims that it can invoke the exception of private copying provided by the Belgian Copyright Act since the user can only (i) use Bhaalu if he has subscribed to the particular channel, (ii) watch his own recordals and (iii) watch his recordals within the "family circle".

The Aereo case does not provide an interpretation on the exclusive reproduction right which would be necessary to draw any firm conclusions regarding the effects of the case on the current dispute regarding Bhaalu in Belgium. In addition, Bhaalu's technology is very different from the Aereo technology and, for that reason, the case will most probably have no direct implications on the dispute regarding Bhaalu. The Aereo-case has left many questions unanswered with regard to other kinds of technologies, such as remote storage DVRs, given the limited nature of the judgment. This is supported by the Court where it states that "questions involving cloud computing, remote storage DVRs, and other novel issues not before the Court, as to which 'Congress has not plainly marked the course,' should await a case in which they are squarely presented".

The broadcasters also believe that Bhaalu should have requested their authorization to use their signal in order to comply with the Flemish Decree of 19 July 2013 which applies to service providers and aims to protect the integrity of the signal being broadcasted. As for Aereo, Bhaalu claims that it merely provides equipment and cannot be categorized as a service. The Court has clearly stated that Aereo is not simply an equipment provider but sells a service that allows subscribers to watch television programs. However, due to the technological differences between Bhaalu and Aereo it remains an open question whether or not this statement will have any consequences on the Bhaalu dispute in Belgium.

To learn more about the implications of the Aereo decision, read our Aereo and the future of cloud TV report.