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The Next Great Copyright Act: Remember the Authors!

This article was originally published on the Media Institute website – see here.  It is reproduced here with the kind permission of the author.

In a previous column for the Media Institute (Feb. 17, 2015), I urged that any copyright reform legislation that emerges from the preparations for “the next great copyright act” should ensure both authors’ attribution and economic interests.  The earlier column addressed attribution; this column will consider remuneration, a matter that has lately been the subject of copyright reform in the Netherlands and France as well.

The Anglo-American legal tradition, not generally known for solicitude toward the weaker party in contract negotiations, [...]

Almost there! In Support of the Green Road to Dutch Science!

Image from page 447 of "The theory and practice of horticulture; or, An attempt to explain the chief operations of gardening upon physiological grounds" (1855) The Netherlands Organisation for Scientific Research (NWO), the main public funding agency in the country, has been enforcing already for a few years an Open Access (OA) policy for the dissemination of the results of the research that it finances (both publications and data). The NWO does not mandate a specific form of OA: Green is as good as Gold! But the practical implementation of the Green Road is, as often the case, subject to the capability of individual authors to secure the right to deposit their article in an institutional repository, once they have transferred their rights to a publisher.

For an equally long period of time the Dutch legislator has been engaged in a process to am [...]

The Dutch courts apply UsedSoft to the resale of eBooks

Portret SabaOn 20 January, the Dutch court of appeals (Hof Amsterdam) gave its preliminary ruling in the case of Tom Kabinet. In this ruling the court had to consider whether the CJEU UsedSoft rationale applies to eBooks as well. Without giving a final judgment, the court indicated that it considers it quite likely that exhaustion of rights, as described in art 4(2) of the Infosoc Directive, also applies to intangible goods, such as eBooks.

Tom Kabinet, a Dutch company, started a business in ‘used’ eBooks. The owner of an eBook can sell his copy through the website of Tom Kabinet. In order to sell used eBooks, the owner needs to declare that he obtained the copy legally, by agreeing to Tom Kabinet [...]

Happy Public Domain Day

Emilie KannekensWhen it comes to copyright it is a game of all or nothing. During the term that a copyright exists, the owner of a copyright has a monopoly on the work due to the exclusive rights of reproduction, distribution and communication to the public. When the copyright protection expires and the work enters the public domain, all exclusive rights vanish and the former copyright owner is left empty-handed.

On January 1st 2015, the works of the world-famous Dutch artist Piet Mondriaan (along with several other significant artists including Edvard Munch, best known forthe scream) fell into the public domain. The colourful grid work paintings that Mondriaan is so well known for, can now, in prin [...]

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 [...]

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