National orchestra musicians win case over pay for streamed concerts

The Belgian National Orchestra has been ordered to stop streaming some of its concerts online, after the Brussels appeals court ruled in favour of the orchestra’s musicians in a dispute with management over pay.

All creation generates copyright but the law differentiates the main right attributed to the creator of the work and the ancillary rights attributed to those who interpret the work.

The producer has to negotiate with the musical performers the conditions by which the broadcast of the concert by radio broadcasters is authorised.

In particular, the court of appeal found that the National Orchestra had allowed the web-streamed broadcast of concerts without agreements on the musicians’ ancillary rights.

For Suzanne Capiau, the lawyer who defended the musicians, the appeals court clarified the debate: "This type of performance is not an audiovisual work, it is a recording that creates a right for the producer - but the producer must negotiate the rights with the musicians as it has already done in other circumstances."

She added: "In this case the performers of a musical work benefit from an exclusive right to authorise or prohibit the use of their performances. To be able to permanently exploit the recording of this concert, it is therefore necessary to obtain a written authorization from the performing artists.”

For having not applied this rule, the National Orchestra must stop the internet broadcasting of several concerts or pay the penalties obtained by the claimants’ lawyer.

Capiau said a European directive of 2019 should be immediately integrated into Belgian national law as it offers even better guarantees for the defense of the right of performing musicians.