Copyright

“Copyright is the exclusive right of the author of a work of literature, science or art, or of his successors in title, to make this public and to reproduce it, subject to the limitations imposed by law,” according to Article 1 of the Copyright Act. But what exactly does this mean? Which works are subject to copyright? Who is the copyright holder? What rights does the copyright holder have under copyright? Which exceptions apply to copyright? And how can copyright be enforced?

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Copyright is a right that arises automatically when the author creates a work that meets the requirements for copyright protection. Unlike in trademark law, for example, no registration, filing or other formality is required to protect copyrights.

Works are copyrighted that have their own original character and bear the personal stamp of the maker. Simply put, if a work is original and creative, then it can be copyrighted. 

 

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The threshold for copyright protection is low. The lower limit for copyright protection implies that a work may not be so banal or trivial that no creative work of any kind can be identified behind it. In principle, all works that do reach this (creative) threshold are protected by copyright. It should be noted that objective elements of a work are not copyrighted (because they are not creative). These objective elements can, therefore, be used by everyone. Ideas – without being expressed in any way – are not eligible for copyright protection. There it lacks a sufficient personal stamp from the maker.

What can be Copyrighted?

Copyright law lists a number of different categories of works that may be subject to copyright. This includes, for example, books, brochures, newspapers, magazines, musical works, drawings, buildings, designs, logos, sketches, photographic works, film works, but also computer programs. However, this list is not exhaustive. This means that copyrights can also rest on other – not specifically mentioned – categories of works. Nevertheless, it is required that the subject of copyright protection can be identified accurately and objectively. In that context, it has been concluded, for example, that the taste of a food does not meet this requirement: it cannot be determined with sufficient precision and objective accuracy. Therefore, it cannot be copyrighted. This means that only if a work can be determined sufficiently accurately and objectively, and the work is original and creative, the work is protected by copyright. 

The Maker has the Copyrights (and the Exceptions to them)

The copyright holder of a work is in principle the natural person who created the work. For example, in the case of a photo it is the photographer; in the case of software; the programmer; and in the case of texts; the author. Moreover, it is a common misconception that copyrights on a work would belong to the client (because the client paid for it). The main rule is, therefore, actually that the copyrights belong to the actual maker.

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Legally Valid Disclosure by a Legal Person

However, there are some exceptions to this. For example, the copyrights to a work that has been lawfully published by a legal person also belong to that legal person. If a work is published by a legal person and there is no mention of the name of the actual creator, the copyrights belong to that legal person. It is required that the disclosure is lawful. This means that the disclosing legal person may not have violated an agreement with the de facto creator stating his name. If such an agreement was violated, the disclosure was unlawful and the legal person is consequently not regarded as the creator.

Employer Copyright

Another exception is employer copyright. Employer copyright means that in many cases copyrights to works created in employment are held by the employer. There is an employment relationship if there is a relationship of authority between the employee and the employer. The employer is only entitled to the copyright of a work made by an employee if the creation of the work concerned actually falls within the employee’s job description.

Important to note is that employer copyright does not apply to freelancers. 

Management, Supervision and Contractual Agreements

In addition, there is an exception for works designed by someone else that have been created under his / her management and supervision. It is also possible to deviate from the main rule that the actual maker is the copyright holder by means of contractual provisions. 

Exploitation and Personality Rights

The copyright holder has various rights under copyright. These rights can be divided into exploitation rights and personality rights. The exploitation rights mean that the copyright holder has the exclusive right to reproduce or publish the work. If someone wants to (also) reproduce this work or make it public, he or she needs permission from the copyright holder. This permission is often referred to as a license or a right of use. Reproduction includes copying, editing or translating work. Publicizing includes publishing, broadcasting, exhibiting or staging a work. 

Personality Rights

In addition to these exploitation rights, copyrights also consist of personality rights. These rights consist of the creator’s right to object:

  • against the publication of the work without or with an incorrect attribution;
  • against alteration of the work, and;
  • against deformation, mutilation or other damage to the work.

Personality rights are strongly bound to the maker of the work. Even after a transfer of copyrights (i.e. if the exploitation rights do not belong to the creator), the creator can invoke a violation of his personality rights.

There are, however, some restrictions on copyright. Therefore, the copyright holder must tolerate the reproduction and publication of his work without permission. Some of these restrictions also include the right to quote, the press exception and the parody exception.

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Right to Quote

Citing relevant parts of a copyrighted work – without permission from the copyright holder – is permitted under certain conditions. In short, citing (without permission) is allowed if:

  • there is a clearly identifiable purpose for this;

  • no more is taken over than is strictly necessary; and

  • the source is stated, if possible.

Press Exception

Press media may copy messages from other press media without permission. However, the receiving press medium is obliged to state the source, including the name of the maker. The press exception does not apply if the relevant media has reserved copyright. In that case, the article may not be reproduced without permission. The larger press media usually reserve the copyrights to articles by default, making this copyright limitation less and less significant.

Parody Exception

If a work is the subject of a parody, it is almost always an adaptation or imitation of that work. Such an operation or imitation qualifies as a reproduction within the meaning of copyright. Since it is not desirable for parodies to have permission from the copyright holder, the parody exception has been raised. The characteristic of a parody is that existing work is recreated in a humorous way with clear differences. For example, if a copyright holder or third party intends to create an allowed parody, this requires that there is a fair balance between the interests and rights of the copyright holder and the free expression of the person making the parody.

If a work is reproduced or made public without the permission of the copyright holder, and no restriction applies to copyright, this is in principle a copyright infringement. What is special about a copyright infringement is that an unconscious infringement is also unlawful. In the event of an infringement, the copyright holder can bring various actions, including an action to stop and suspend the (imminent) infringement, an action for damages and action for reimbursement of the full legal costs (see below).

With the arrival of the internet, copyright infringements have stretched. Websites, images, photos, music, software, films and videos are generally eligible for copyright protection. Downloading and uploading these works – without permission – in principle constitutes copyright infringement.

Damage

In the event of an infringement, the infringer must compensate for the damage suffered by the copyright holder. It is often difficult to estimate damage in copyright cases. The starting point in Dutch law is that the damage actually suffered must be compensated. But how do you calculate that damage in the event of copyright infringement?

A number of methods have been developed in the literature and case law for estimating the damage. Usually, the damage is sought in connection with the lost license fees: the damage is estimated on the basis of the compensation that the copyright holder would have received if permission had been requested for use. Another method regularly used is to estimate the damage suffered on the profit gained from the infringement. If there is insufficient objective, the damage can be estimated. Estimating the damage is the last possibility, and really only takes place if there are insufficient objective leads to estimate the damage.

Copyright is an intellectual property right. This means, inter alia, that – in the case of legal proceedings – the unsuccessful party may be ordered to pay the costs actually incurred by the successful party. It is often thought that this is the case in all lawsuits, but that is incorrect. In most cases, the unsuccessful party is only ordered to pay the costs of the proceedings, according to the liquidation rate applicable to those proceedings. This liquidation rate only covers a very limited part of the legal costs incurred.

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Litigation Costs

The purpose of compensation of full procedural costs in cases related to the enforcement of intellectual property rights is to strengthen the rights holder’s position. The fact that the full costs incurred are eligible for reimbursement ensures that the right holder does not have to be reluctant to enforce his intellectual property rights.

In the context of full legal costs orders, it is important to mention that the full legal costs are only eligible for reimbursement if they have been explicitly claimed by the relevant party. The costs must also be specified in time. The judge cannot budget the costs himself. It is also not possible for the other party to file a defence against (the level of) legal costs if they are not expressly claimed. 

In order to indicate which costs are reasonable in certain procedures, the judiciary, in consultation with the Dutch Bar Association, has published a document with indicative rates (and other information regarding the full legal costs allowance). These rates are an indication of what in principle are reasonable costs. A distinction is made here according to the degree of complexity of a procedure. If the actual costs are higher than the costs based on the indication rates, the court will ask for (further) explanation why a deviation from the rates is reasonable in this case. If there is a good explanation for this, then the judge can allocate this higher amount – even though these are higher than the indication rates. 

If you believe that your copyrights are being infringed, please contact a specialized lawyer who can advise you on the existence and enforcement of your copyrights, including (possible) costs to be recovered from the infringer.

Intellectual property law, including copyright, is a special area of ​​law. As stated above, copyright has some special provisions that do not apply to other jurisdictions. Do you want to know more about copyright? Do you want to maintain your copyrights? Or did you receive a letter saying you would be infringing on someone’s copyright?

Call or e-mail directly with the specialized LAWFOX lawyers.

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