Explanation and background of Dutch copyright
The basic principle of copyright is to protect the work of its maker so that he will be enabled to reap the benefits from his labour. This is not an absolute right. Copyright must be balanced with other rights such as freedom of information and information exchange. Copyright rules can be found in the Dutch Copyright Act (DCA). From time to time the DCA is updated to comply with European legislation and international treaties.
Article 1 of the DCA states that copyright is the exclusive right of the maker of a literary, scientific or artistic work, to make the work public and to reproduce it. A work comes into being the moment it is created. Copyright on a work arises at that same moment and it arises 'automatically': copyright does not need to be filed or registered, as in the case of a patent or a trademark.
The maker of a work is the one responsible for the spiritual creation (Article 4 of the Dutch Copyright Act, DCA). In principle, the actual maker is the copyright holder, the one who owns the copyright. The DCA has three provisions which deviate from this and in which a person/entity other than the actual maker is regarded as the copyright holder (legal maker).
Article 6 DCA: When a work has been created according to the design of another person and under his direction and supervision, that person is regarded to be the maker of that work.
Article 7 DCA: When labour performed in the course of employment consists of producing certain works, the employer is regarded as the maker of that work.
Article 8 DCA: When a legal entity (such as a company or a foundation) publishes a work as if it were its own without mentioning the natural person as the maker, that legal entity is regarded as the maker of that work.
A work within the meaning of the Dutch Copyright Act (DCA) is a form of ideas, thoughts or feelings which somehow are perceptible to the senses. In addition, jurisprudence has developed the criterion that the work must have its own original character and bear the personal stamp of the maker. Ideas, thoughts, methods, theories, etc. are not protected by copyright.
Article 10 of the DCA gives a definition of a ‘work’. The non-exhaustive enumeration in this section shows that the term 'work' is not limited to books, brochures or other writings, but also includes oral lectures, musical works, choreographic works, architectural designs, photographic designs and computer software.
Copyright gives the maker the exclusive right to a) make his work public and b) reproduce it. These are the exploitation rights.
The right of making public is set out in Article 12 of the Dutch Copyright Act (DCA) and can be defined as bringing a work to the notice of the public. Examples are the publication of a work on paper, lending out a work, or giving a public lecture. Publication by electronic means, such as making an article accessible on a computer or in an open or private network, is also included.
The right of reproduction is set out in Articles 13 and 14 DCA. Reproduction means making copies in which the work is recorded, such as having a publication printed, making a photocopy, scanning and uploading documents. Editing and translating are forms of reproduction, as well as storage in an electronic memory.
In addition to exploitation rights, Article 25 Dutch Copyright Act (DCA) protects the moral rights of the maker. These rights are so closely connected to the maker as a person that they cannot be transferred to others. For example, the maker can oppose the publication of his work anonymously or object to publication under another name than his own. The maker can also object to changing the name of his work or to drastic alterations being made that could tarnish his good name.
These rights cannot be transferred. However, a creator may waive these rights. An exception to this is the right to oppose any deformation, mutilation or other impairment of the work, which could harm the honour, name or reputation of the maker (Article 25 paragraph 1 sub d DCA).
Copyright lasts for 70 years after the death of the maker. After the death of the maker the copyright passes to his heirs. In the case of a work by a legal entity and an anonymous work, the duration of the copyright is 70 years from the date of first publication.
A maker may use of his copyright in various ways. He can exercise all rights himself, but may also grant others, such as a publisher, the right to do so by means of assignment or licensing. With an assignment, the maker decides which part of his copyright he assigns; he is not obliged to transfer his entire copyright unconditionally. With a licence, the maker may achieve the same result as with an assignment. A licence is nothing more than permission from a copyright owner to another person to perform certain actions that are covered by copyright. Unlike assignment, with a licence the maker retains his copyright. The Dutch Copyright Act stipulates that an assignment and an exclusive licence may only be granted in writing. A non-exclusive licence may be granted orally, but this is not advisable.
To ensure the freedom of information, the Dutch Copyright Act (DCA) provides a number of exceptions in which the maker is restricted in his copyright. The most important restrictions are laid down in articles 15 and 16 of the DCA. In those cases, copyrighted material may be used without permission of the author. Sometimes the user must pay a fair remuneration to the maker, for example when a work is included in the electronic learning environment of the university, in Leiden this is Brightspace.
Copyrighted material may be used without permission from the maker for:
- giving live education (in the lecture hall or online), provided this serves a non-commercial purpose (teaching in universities is considered a non-commercial purpose);
- quoting/citing from a work;
- copying part of a work for use in teaching;
- copying for personal practice, use or study;
- making available via a private network a work belonging to collections of libraries accessible to the public;
- the reproduction of a work for the sole purpose of restoring the copy of a work, keeping it accessible when the technology with which the work is accessible falls into disuse and when there is a threat of decay, in order to preserve the work for the institution.