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Belgium recently passed a law allowing researchers to make any of their article open access if the majority of the research funding came from Belgian public funding. The law is retroactive.

How can the retroactivity be legally enforceable in the common cases where the researchers signed publishing contracts with non-Belgium publishing companies?

Here is the law:

Art. 29. Dans l’article XI.196 du même Code, inséré par la loi du 19 avril 2014, il est inséré un paragraphe 2/1 rédigé comme suit:

“§ 2/1. L’auteur d’un article scientifique issu d’une recherche financée pour au moins la moitié par des fonds publics conserve, même si, conformément à l’article XI.167, il a cédé ses droits à un éditeur d’un périodique ou les a placés sous une licence simple ou exclusive, le droit de mettre le manuscrit gratuitement à la disposition du public en libre accès après un délai de douze mois pour les sciences humaines et sociales et six mois pour les autres sciences, après la première publication, dans un périodique, moyennant mention de la source de la première publication.

Le contrat d’édition peut prévoir un délai plus court que celui fixé à l’alinéa 1er.

Le Roi peut prolonger le délai fixé à l’alinéa 1er.

Il ne peut être renoncé au droit prévu à l’alinéa 1er. Ce droit est impératif et est d’application nonobstant le droit choisi par les parties dès lors qu’un point de rattachement est localisé en Belgique. Il s’applique également aux œuvres créées avant l’entrée en vigueur de ce paragraphe et non tombées dans le domaine public à ce moment.”.

Google translate:

"§ 2/1. The author of a scientific article from a research financed for at least half by public funds, even if, in accordance with Article XI.167, he has assigned his rights to a publisher of a periodical or has placed them under a single or exclusive license, retains the right to make the manuscript freely available to the public for free access after twelve months for the humanities and social sciences and six months for other sciences, after the first publication in a periodical, subject to mentioning the source of the first publication.

The publishing contract may provide for a shorter period than that set paragraph 1.

The King may extend the period laid down in paragraph 1.

The right provided for in paragraph 1 can not be waived. This right is imperative and applies notwithstanding the law chosen by the parties so long as a point of attachment is located in Belgium. It also applies to works created before the entry into force of this paragraph and not fallen into the public domain at this time. "

  • I think that (a) publishers have been "on notice" for some years that this was coming and (2) retroactive law is possible, w.r.t. "conditions" in a contract. Something about Art. 1179, but I don't really get it. – user6726 Sep 8 '18 at 6:10
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    This law expliciitly gives authors in Belgium a right notwithstanding anything in their contract. As such it is enforceable in Belgian courts (strictly speaking, any publishers who sued to enforce a contract would fail). Whether it's enforceable elsewhere will depend on other factors such as whether the contract is under Belgian or foreign law . PS Google translate has a few errors (shock) it might be sensible to fix. – Tim Lymington supports Monica Sep 8 '18 at 17:49
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Because Belgium is a sovereign nation and (presumably) is not prohibited constitutionally from making retroactive laws in general and this one in particular.

The foreign publishers have just fallen victim to sovereign risk - the risk that a change of law or government policy will adversely affect your rights under a contract.

Governments are wary of changing laws retroactively because it undermines certainty (such as it is) in the law, however, they usually are not prohibited from doing so.

  • Thanks. Assume that I am a Belgium researcher, who signed a contract with a US-based publishing company. Can't the company sue me for breach of contract in the US? – Franck Dernoncourt Sep 10 '18 at 5:28
  • Yes, and when they try to enforce the judgement in a Belgian court they will fail. Of course, if the US court applies Belgian law (as it should) the US court will not enter a judgement. – Dale M Sep 10 '18 at 5:38
  • "when they try to enforce the judgement in a Belgian court they will fail." -> Wouldn't I be in trouble if I go to the US? – Franck Dernoncourt Sep 10 '18 at 5:56
  • Yes you would be – Dale M Sep 10 '18 at 6:00
  • @FranckDernoncourt"Wouldn't I be in trouble if I go to the US?" The issue is not whether you go to the U.S. (no one would throw you in jail or anything like that), the issue is that if you have assets subject to U.S. jurisdiction, they could be seized pursuant to a U.S. money judgment. – ohwilleke Sep 10 '18 at 22:22
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It's not a retroactive law. It doesn't change the legality of any action in the past. It is a law that affects items that were in previously signed contracts, but that's not new.

For example, changes in employment law can change or invalidate some provisions in work agreements and contracts. In the US, agreements that an employee's total creative output belongs to the company are common, but a state could pass a law that invalidates that agreement.

Whether this is a good idea is better asked on the politics site

  • Contracts standardly include "to the extent allowed by law" disclaimers which anticipate this possibility. – user6726 Sep 10 '18 at 21:22
  • This would probably not be allowed under U.S. law under the contracts clause of the United States Constitution. – ohwilleke Sep 10 '18 at 22:20
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    Actually, it does mean that a disclosure a few months before the law was passed, which was a breach of contract then, is not so now. And assuming ohwilleke is right (I don't doubt it) raises a tricky and unusual point of law; if an American court were asked to rule on the contract (because the defendant is in the US) but apply Belgian law (because that's what the contract says), it could not properly either uphold or overrule this section. Probably the court would just refuse jurisdiction. – Tim Lymington supports Monica Sep 11 '18 at 10:30

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