Copyright explained



Much is spoken and written about copyright. In principle, anyone who creates or wants to use an ‘original work of literature, science or art’ is subject to the Dutch Copyright Act (Auteurswet). Artists and producers have rights under the Dutch Neighbouring Rights Act (Wet op de naburige rechten). But how does this actually work?

Copyright fulfils many functions. To quote Bernt Hugenholtz, professor of Information Law, ‘Of course, copyright is not only there for authors (or their representatives), it is there for all of us. Copyright fulfils a variety of social and economic functions: it promotes the production of cultural goods, boosts the information economy, keeps lawyers off the streets, and so on. Perhaps, one of its main functions is that it enables authors to live off their work independently, without having to dance to the tune of a boss, a client, a sugar daddy or the State. It is important to ensure that this vulnerable group continues to exist − for the diversity of our culture, for the plurality of information, as a remedy against the ongoing media concentration, and for our democracy.’

But how does copyright work?

Let us focus on a number of main features:

Copyright

In principle, anyone who creates or wants to use an ‘original work of literature, science or art’ is subject to the Dutch Copyright Act. Under this Act, the author of a work − for example, a composer/lyricist of a song, a journalist, a photographer or a visual artist − has the exclusive right to communicate his or her work to the public or to reproduce it. This right is valid until seventy years after the death of the author or the death of the last surviving author.

Copyright subsists only in a ‘specific form’ of a work. Copyright does not cover an idea, a scientific proposition or a style.

The creator
Prima facie, ‘until proved otherwise’, the law assumes that the person who is identified as the author when a work is published is the creator. Initially, the creator is also the copyright owner. And in the case of a work of joint authorship, the creators receive − depending on everyone’s creative input − a joint copyright on the work. If they have each created a separate part of the work, for example, text and music or text and illustrations for a children’s book, they each are the copyright owner of the part they have created.

There is an exception in the case of an employment relationship. If the author creates a work within the scope of his or her employment, the employer is regarded as the ‘creator’ unless the employee and the employer have agreed otherwise. This is not the case in many other countries.

Finally, if you adapt someone else’s work − for example, by making a translation, adapting a book for the screen or adding different lyrics to a song – you become the copyright owner of that adaptation yourself. But apart from that, the original copyright remains in full force and effect.

Communication to the public and reproduction
In fact, the exclusive right to communicate a work to the public and to reproduce it means that only the creator may communicate the copyrighted work to the public (for example, by performing a song in public) and reproduce it (by printing it in a book or newspaper or by publishing the same song on CD, for example). As a general rule, everyone else needs the creator’s permission to do so. In practice, this usually means that the copyright owner grants permission only if remuneration is paid in return. Sometimes, in the case of commissioned work, this remuneration is paid in advance, and sometimes it is paid at the time of exploitation, through a publisher, a producer or through a Dutch collective management organization (CMO).

Moral rights
In addition to the rights of communication to the public and reproduction, copyright includes a third fundamental set of rights, known as ‘moral rights’. Moral rights are for the most part non-transferable. In principle, whatever creators do and whatever contracts they sign, they always retain their moral rights. These rights protect them against undesirable distortions of their work and allow them to take action against publication of their work under another person’s name or under a title other than the original. In principle, there is nothing to be gained commercially from these moral rights; they only protect the creator’s reputation. Even so, this is an increasingly important principle, especially in this day and age, when it is so easy to copy and adapt works.

Exceptions
There are several important exceptions to the exclusive right of the creator. These exceptions aim to maintain the creator’s right to fair remuneration in the event of commercial exploitation, but to take the public interest into account in a well-balanced way too. For example, there are exceptions for news gathering, education and the right to quote (for quotations in polemics and announcements, among other things). As far as public lending by libraries is concerned, the exclusive right has been converted into a right to remuneration: if a book, magazine, CD or DVD has been published, libraries are allowed to lend the works as long as they pay a fixed amount in compensation for each time it is lent. The same applies to making copies for consumers’ private use (the Home Copying Scheme) and making photocopies (‘reproduction right’). These are important exceptions because they allow use but offer remuneration to creators and other rightholders.

Collective management
Many of these payments are collected on behalf of right holders and distributed on the basis of usage data by Dutch collective management organizations (CMOs), such as Stichting de Thuiskopie, Stichting Leenrecht, Stichting Reprorecht, Buma, Stemra, Lira, NORMA, VEVAM, Pictoright and FEMU. The advantage of collective management is that users have a central address: a one-stop shop where they can obtain licences at publicly known rates. Another advantage is that creators do not have to monitor the use of their works themselves. A disadvantage is that they can no longer prohibit certain uses, even though creators can always invoke their moral rights if their reputation is put at risk. In the event of mandatory collective management (for statutory exceptions), the creator has no choice. In the event of voluntary collective management (such as the main exploitation by Buma and Stemra), authors may choose to manage their rights themselves or to have their rights exploited by a CMO in the Netherlands or abroad.

Film works
Another exception to the rule is the film article (Article 45) in the Copyright Act. This article introduces a ‘presumption of assignment’: because a very large number of copyright owners, performers and other right holders are involved in a film work, the law concentrates the power of exploitation in the hands of the film producer. The film maker may make other agreements, but this is unusual. ‘Pre-existing works’, i.e. works that already existed prior to the film and are adapted or used in it, are outside the scope of this presumption of assignment, just like musical works. The law provides that film makers are entitled to fair remuneration through the producer, provided that they have assigned their exploitation rights to the latter. Filmmakers are also entitled to fair remuneration for broadcasts, provided that they have assigned these rights to the producer. The right to fair remuneration is in this case exercised by a CMO. For screenwriters, this is Lira, for directors, VEVAM, for actors and musicians, NORMA and for other makers (such as camerapeople) FAIR. This scheme does not apply to cinemaexploitation or Video on Demand (VOD).  Negotiations for a voluntairy collective compensation for Dutch filmworks on the Dutch VOD market are currently being held.

Resale right
The ‘resale right’ has been in force in the Netherlands since 1 April 2006. The resale right is the right of the creator of an original work of art to receive a small percentage of the sale price when his or her work is resold through the professional art trade. In this way, visual artists can benefit from an increase in the value of their works.

The royalty is a percentage of the sale price. The rate depends on the price at which the work of art is resold: the higher the sale price, the lower the rate. The total amount of the royalty may not exceed EUR 12,500. No royalty is due, inter alia, for a sale price below EUR 3,000 or in the event of any sale within three years of purchase direct from the artist at a sale price below EUR 10,000. Most domestic and also many foreign artists have their resale rights collected through Pictoright, the copyright organization for visual creators. Here, too, the following applies: it is difficult for creators to keep track of the resale of their works themselves.

Neighbouring rights

In addition to copyright, there are ‘neighbouring rights’, also known as ‘related rights’. Neighbouring rights grant performers (including musicians, dancers and actors) rights to the recording of their work, in the same way that copyright grants authors and composers rights to their work. The Dutch Neighbouring Rights Act provides, for example, that no recording of a performer’s work may be exploited without the performer’s permission. The Neighbouring Rights Act also grants the owner of the recording (the producer) similar rights. Based on their neighbouring rights, musicians or actors enter into an agreement with a producer in which their fee is arranged. In addition, the public lending rights and home copying exceptions deriving from copyright also apply to neighbouring rights. The neighbouring right to audio recordings is valid until seventy years after the date of first publication; the neighbouring right to audio-visual recordings is valid until fifty years after the date of first publication.
Neighbouring rights also include moral rights, but there are wider possibilities to waive them. Only the right to take action against mutilations and damage to the performer’s reputation remains valid at all times and cannot be signed away.

Collective remuneration for musicians
An important article in the Dutch Neighbouring Rights Act is Article 7: once a musician has granted permission for a communication to the public of a ‘phonogram or a reproduction thereof published for commercial purposes’ (for example, a CD has been released with the musician’s permission), he or she no longer has the right to prohibit a broadcast of that recording. Nor can producers themselves negotiate on that once they have brought a recording into circulation. However, the broadcaster that wants to broadcast the recording, or the cafe that wants to play songs, must pay them remuneration for this. The amount of remuneration has to be mutually agreed upon. To ensure that not every musician or record company has to conduct separate negotiations with every café that wants to play a song from a CD, these negotiations are conducted by Sena. Sena negotiates with the users of recorded performances and distributes the money: 50 percent to producers and 50 percent to performers. In addition, NORMA collects other collective payments (home copying levies and public lending rights) for performers and STAP does the same for producers.

This scheme does not apply to on-demand digital exploitation. For on-demand services, the relevant European Directive prescribes individual exploitation as a general rule. In practice, this means that anyone who wants to start an online on-demand service must come to an agreement with all individual producers, who can usually exercise the artist’s rights via the record contract. Musicians should also receive fair remuneration from the producer for these forms of exploitation.

Also recordings for which an individual license has been given for a ‘sync’ (combining the recording with moving images) are exempt from this scheme. If there is no individual license the producer and artists can let Sena handle this exploitation.

Actors
For actors, or ‘on-screen performers’, NORMA distributes home copying levies and public lending right payments, inter alia, as well as the above-mentioned proportional fair remuneration for broadcasts.

Copyright contract law

On 1 July 2015 ‘copyright contract law’ was introduced into the Dutch Copyright Act. Most of the new provisions in the Copyright Act also apply to neighbouring rights. The new statutory provisions are intended to offer authors and performers better protection against unreasonable provisions and ‘strangulation contracts’. The Act provides, inter alia, that authors and performers are entitled to fair remuneration, that representative associations of creators and exploiters may negotiate collectively and may issue an opinion to the Dutch Minister for Education, Culture and Science on minimum fair remuneration, which may then be adopted by the Minister. In addition, the legislation ensures that a creator can have unreasonable contractual conditions set aside, that a creator may claim a right to additional remuneration in the event of unforeseeably successful exploitation (bestseller provision) and that, in the event of no or defective exploitation by an exploiter, creators may claim back their rights (non-use provision). The legislation also provides for the establishment of the Dutch Copyright Contract Law Disputes Committee as an easily accessible alternative to the courts. Authors and performers may go to the latter committee only if exploiters register with the committee. To date, the vast majority of exploiters in the Netherlands have refused to do so.

The workings and effects of the new provisions was subject of a study by the WODC in 2020 (WODC-rapport ‘Evaluatie Wet Auteurscontractenrecht’). The study concluded that the new provisions have up to now had limited effects in the market and recommended further legal ans policy measures.

 

Erwin Angad-Gaur