Internet Archive. The Belgian decision marks a strategic win for publishers, showing that even large and respected platforms can be held accountable when they operate outside licensing frameworks.

Balancing Access and Rights: Lessons for Publishers from the Belgian Order Against Internet Archive

In a landmark decision by the Belgian Department for Combating Infringements of Copyright, Internet Archive (IA) has been ordered to block public access to certain digitized books in Belgium via its Open Library platform. This outcome follows failed negotiations between the IA and a coalition of publishers and authors. The case underscores how governments are now turning to administrative anti-piracy frameworks—rather than courts alone—to address digital copyright disputes. It also provides a set of strategic lessons for publishers navigating the evolving digital landscape.

Key Takeaways from the Decision

1. Publishers Can Leverage Administrative Enforcement

   • Belgium’s two-step system—court order followed by government-implemented technical measures—demonstrates how rightsholders can bypass lengthy litigation by working with designated enforcement bodies.

   • Once a “manifest and significant” infringement is identified, intermediaries (including platforms like Internet Archive) can be compelled to block access to content.

2. Intermediaries Can Be Deemed ‘Infringers’

   • Despite being a non-profit, IA was found not to be a neutral intermediary. Its active role in digitizing and lending books without licenses made it liable under Belgian law.

   • This suggests that platform status alone is no shield; editorial control and direct involvement in content hosting can trigger liability.

3. Public Domain and Metadata Still Protected

   • The ruling made a nuanced distinction: while access to entire works was restricted, IA could continue showing metadata, book covers, reviews, and bibliographic information.

   • For publishers, this means discovery and visibility mechanisms are preserved, while unauthorized distribution is curtailed.

4. Fair Use vs. Local Law

   • IA cited U.S. fair use doctrine to justify its digital lending model. However, the Belgian authorities explicitly declined to rule on foreign legal exceptions.

   • The message for publishers is clear: local copyright frameworks take precedence, and platforms cannot unilaterally apply foreign doctrines.

5. Enforcement Includes Technical Safeguards

   • The IA must not only remove the listed works but also implement preventive measures to avoid future availability. The process is subject to monitoring and verification by authorities.

   • For publishers, this sets a precedent: enforcement is not just about take-downs, but also about future-proofing against re-upload.

6. Monetary Penalties Are a Key Lever

   • Non-compliance triggers a €500,000 one-time penalty, underscoring how serious the stakes are for infringers and platforms alike.

   • Rights owners can use the threat of penalties to push for compliance and deter casual infringement at scale.

7. Voluntary Agreements Still Encouraged

   • The government initially paused implementation to give both parties a chance to reach a mutual deal, though talks ultimately failed.

   • This shows the importance of proactively offering licensing models, especially in markets where enforcement is tightening.

8. Implementation Must Be Proportionate

   • The decision emphasized “strict proportionality”, ensuring that actions are necessary and do not infringe fundamental freedoms such as access to information.

   • Publishers should be mindful to pursue balanced enforcement strategies that avoid overreach and respect legitimate uses, such as public domain or educational exceptions.

9. International Ramifications

   • Although the order applies to Belgium, IA now faces the technical and strategic challenge of geographically restricting content, which could inspire similar actions in other jurisdictions.

   • Publishers may look to copy this playbook in countries with robust anti-piracy enforcement mechanisms.

10. Judicial Oversight and Appeal Options

    • The process allows for appeals and modifications, ensuring that enforcement is not absolute or unchecked.

    • Publishers should be ready for pushback and procedural delays, and must ensure their claims are well-documented and supported by rights evidence.

Strategic Recommendations for Publishers

• Map your content footprint: Identify where your works are appearing on open libraries, shadow libraries, or academic sharing platforms.

• Document your rights position: Maintain clear ownership records and publisher-author agreements to strengthen enforcement claims.

• Build country-specific enforcement strategies: Understand local legal mechanisms, copyright exceptions, and enforcement bodies.

• Explore licensing where feasible: Platforms like Internet Archive may be open to limited deals, especially for backlist or out-of-print titles.

• Support proportionality and transparency: Advocate for enforcement frameworks that balance protection with legitimate access—especially for educators and researchers.

• Invest in monitoring and verification tools: Use fingerprinting, watermarking, or AI-based detection systems to track where your content surfaces.

• Engage in preemptive dialogue: Consider industry-wide negotiations (e.g. through STM or IPA) to avoid fragmented litigation.

Conclusion

The Belgian decision marks a strategic win for publishers, showing that even large and respected platforms can be held accountable when they operate outside licensing frameworks. However, it also highlights the importance of measured, rights-based enforcement that respects user freedoms and encourages legitimate access. As digital lending models evolve, publishers must remain vigilant, collaborative, and adaptive—balancing protection with innovation.