Sabam can prove its mandate without showing an agreement

Submitted by Thomas Baudewijn on January 29, 2016
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According to the Brussels Court of Appeal Sabam can deliver the proof of its representative authority by simply referring to the list of rights holders that is submitted with the Monitoring department at the FPS Economy. Therefore it is not necessary to provide the membership agreement or excerpts thereof to the debtor of copyrights.

At the basis of this judgment is a dispute about resale rights that had to paid to Sabam by an art gallery. These are specific copyrights that are due when artistic works are being resold and at least one professional party is involved in the sale. The art gallery had always correctly declared the sale of the paintings to Sabam and did not dispute the fact that resale rights were due, but wanted Sabam to provide evidence of its representative authority.

In that regard it was the opinion of the art gallery that Sabam had to present the membership agreements of the rights holders or at least excerpts thereof. However, from where Sabam was sitting that was not necessary and moreover not so easy to do because these agreements often contain confidential information that cannot be disclosed. Since both parties were unable to agree on this matter Sabam took it to the court who condemned the art gallery to pay the resale rights.

This decision was appealed but to no avail. The Court of Appeal refers to Sabam’s legal obligation to:

  • file a list of the rights holders at the Monitoring department that can be consulted by the public and that needs to be updated every six months;
  • provide access to the repertoire at their place of business;
  • make a list containing the names of the rights holders at the end of the fiscal year.

Based on the fulfillment of these obligations the mandate is considered to be sufficiently proven. The Court further notes that Sabam is making the list of its members available via CD-ROM and online and had provided this to the gallery.

Apart from this Sabam had correctly informed the gallery that one of the rights holders was not a member. But since the rights could not be paid to the author or the collective management society responsible for the management, they were billed correctly and in accordance to the applicable legal provisions for payment on the joint account of Sabam and Sofam.

It should therefore be noted from this verdict that disputing the mandate of Sabam or any other collective management society does need to have some substance. Otherwise the courts won’t have it and it won't work as a trick or an excuse not to pay copyrights that are rightfully due.

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