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Dutch Supreme Court: Cable retransmission has ended, but the levy might be reintroduced

DVisserImportant ruling by Dutch Supreme Court on cable retransmission, film copyright and collective management of rights

Guest blog by Prof. Dr D.J.G. Visser, Institute for Private Law, Leiden University 

“This could well mean that several Dutch collecting societies, in particular those representing actors, screenwriters and directors (Norma, Lira and Vevam) can no longer claim remuneration for cable (re)transmission of programs broadcast by Dutch broadcasters.”

The cable distribution of Dutch television programs as it currently takes place in The Netherlands is no longer a ‘cable retransmission’ in the sense of the EU Satellite and Cable (SatCab) Directive, because it is no longer precede [...]

EU: Does Innoweb hinder innovation on the web?

Martin Husovec“The activity of the operator of a dedicated meta search engine (…) comes close to the manufacture of a parasitical competing product.”

Christmas somewhat overshadowed the publication of a particularly interesting CJEU decision: case C-202/12 (Innoweb), dealing with the legal protection of databases in relation to meta search engines. The judgment was published on 19 december 2013.

The preliminary questions referred to the CJEU arose in Dutch civil proceedings against Innoweb, a company that operates the dedicated car meta search engine ‘GasPedaal’ (literally ‘accelerator pedal’), which enables users to simultaneously carry out searches in several collections (databases) of ca [...]

The Netherlands: a hyperlink to unfindable files

bdpb“In that case, the publication of an hyperlink is, in principle, not an autonomous communication to the public”

It is a common fact that the sex-industry, along with the arms industry,  is a driving force behind many new developments. Porn is a major force on the internet and it also shouldn’t come as a surprise that important legal questions surface in porn-related cases. One example is the recent  commotion in Germany about tens of thousands of cease and desist letters for watching a porn-stream on the internet (see this earlier blog) and another example is a judgment of the Amsterdam Court of Appeal in a case about playboy-photo’s that were leaked to or found by other media an [...]

Private copying levy: The aftershocks of Padawan

thuiskopie“”The difficulty also lies in the fact that (to our knowledge) no levy system within the EU provided before Padawan for such a distinction and that the structure of the payment system did/does not lend itself easily to making such a distinction.”

There’s nothing wrong with a private copying levy, the CJEU decided in SGAE/Padawan, but “the indiscriminate application of the private copying levy to all types of digital reproduction equipment, devices and media, including cases in which such equipment is acquired by persons other than natural persons for purposes clearly unrelated to private copying, is incompatible with the directive.”

An interesting refinement of a controversial legal d [...]

“Backseat conversations” not protected by copyright

endstra“The occasional use of an unusual expression – such as “she has a black belt in shopping, so uh …” to describe the shopping behavior of Endstra’s wife  – is not enough to make a copyrighted work of an otherwise banal or trivial designed conversation.”

Amsterdam Court of Appeal, 16 Juli 2013 (Endstra heirs vs. Nieuw Amsterdam Publishers).

The 2008 decision of the Dutch Supreme Court in the Endstra-tapes case was, in the words of Professor Hugenholtz , “the most controversial decision of the decade. The case concerned the  question whether the so called ‘backseat conversations,’  a series of conversations between the resale estate investor Willem Endstra and the Dutch police on [...]

Portrait rights: Johan Cruijff’s cashable popularity

Johan-Cruijff-De-Ajacied“When it is established or not contradicted that a reasonable remuneration has been offered, additional circumstances will be necessary in order to conclude that publication is indeed illegitimate.”

In an interesting case about the portrait rights of the legendary Dutch football (soccer) player Johan Cruijff, the Supreme Court of the Netherlands recently ruled that a portrait right is not an exclusive right and that a commercial interest can make a difference, unless a reasonable remuneration has already been offered.

Johan Cruijff argued that the publication by the defendant, a Dutch publisher, of a photo book about the years that Cruijff played for Ajax Amsterdam, infringed his ‘right of [...]

Netherlands: police copyright vs. police drama series

Dr.-Tinus-Ken-“The viewer will not experience it as real and will even consider it to be weird, amateurish or even ridiculous.”

In a case about the use of the ‘house style’ of the Dutch police, the summary proceedings judge  District Court Amsterdam ruled this week that the Dutch State has to give permission to the producer of the television series ‘Doctor Tinus’ for the use of the police-logo, the police car-striping  and  other elements of the  house style of the Dutch police.

In this case, the Dutch State took the position that the State doesn’t  have to give permission for the usage of elements of the ‘police house style’ and the other features of the police in fictional movies or s [...]

NL: Confusing slavish imitation of a painting style is not illegitimate.

Duijs Broer small“The law does not allow for additional protection of the maker of a work against so-called slavish imitation of a style or of elements of style.”

Supreme Court of the Netherlands, 29 March 2013 (Duijsens/Broeren).   

Although the legal concept of coat-tail riding is usually associated with trademark law, it is certainly not unfamiliar to copyright law. But whereas in trademark law the mere association with a popular brand is used to sell the non-identical brand of the coat-tail rider, in copyright law it is often the style of an artist or a work , that is used as a means to stay as close to these work(s) without literally imitating them.

Unfortunately for those whose coat-tails are r [...]

Goodbye, Geschriftenbescherming!

Bernt-HugenholtzBesides tulips, cheese, football and other recreational matters, the Netherlands are famous for its copyright protection of non-original writings. Geschriftenbescherming, as the Dutch call this legal anomaly (and only they know how to pronounce it), is a remnant of an ancient eighteenth-century printer’s right that lives on until this day in the Dutch Copyright Act of 1912. Deviating from the idea of author’s right (droit d’auteur) to which Dutch law otherwise subscribes, the Dutch Act protects ‘writings’ that do not meet the test of originality. Article 10 (1), first item, of the Act, mentions as protected subject matter ‘books, brochures, newspapers, periodicals and all other wri [...]

Can e-lending land itself a spot under the public lending right?

elending-ebooks“However, in none of the studied countries, e-lending activities rely on a statutory copyright or lending right exception.”

By Kelly Breemen and Vicky Breemen, Institute for Information Law, Amsterdam (IViR).

Public libraries in various countries are increasingly involved in e-lending practices. Thus far, these practices are largely based on contractual agreements between the parties concerned rather than on a copyright exception or limitation. But why would public libraries not be allowed to lend e-books under the same conditions that apply to physical books, that is, without prior authorization but against equitable remuneration?

In the context of plans for developing a national digita [...]

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