What is copyright?


The Dutch Copyright Act
The Dutch Copyright Act specifies what copyright is and how it works. The Act was introduced in 1912 and was most recently amended in 2004 to bring it up to date with the digital information society. The amended version was based on the European Directive on Copyright and Related Rights in the Information Society.

The basic principle of the Copyright Act is, on the one hand, that the maker or creator (the official term is the “author”) of a work must be protected so that he can profit from his efforts in some way. On the other hand, the Copyright Act also aims to promote the freedom and exchange of information. The Act attempts to achieve the best possible balance between the rights of the author and the freedom of information. The rise of the Internet and other methods of electronic information exchange have brought about a shift in that balance in recent years. Both the creator of a work – i.e. the “author” – and the user – the researcher or librarian – now find themselves in a different situation, with new opportunities open to them. Moreover, these changes are still ongoing. This sometimes leads to confusion, but it also offers new challenges for authors, educational institutions, and publishers.
Major differences between countries
Although one of the aims of the EU’s “Directive on the harmonisation of certain aspects of copyright and related rights in the information society” is to harmonise the relevant legislation, there remain major differences between the copyright systems of the various EU Member States. There are also major differences between the Netherlands and the U.S. When a contract is concluded, it is always necessary to state which system of law (i.e. that of which country) will apply. It is important to note this because it can affect the arrangements that are made.

Two examples of major differences in legislation.

1. The use of a work by an educational institution is subject to different legal provisions in the United States to those in the Netherlands. In the Netherlands, the Copyright Act states when and under what conditions material can be used in an educational context. In the United States, the principle of “fair use” applies. Whether that principle is relevant in a given case is determined on the basis of four criteria.

2. In the Netherlands, a distinction is made between personality rights and exploitation rights, as provided for in a number of sections of the Copyright Act. German law intertwines exploitation and personality rights. In Germany, copyright cannot be transferred but it is possible to grant a licence in respect of exploitation rights (Nutzungsrechten).
What is copyright?
Section 1 of the Copyright Act states that copyright is the exclusive right of the “author” of a work of literature, science/scholarship, or art to publish it or duplicate it. The Act sets no requirements as regards how copyright arises. A work comes into being at the point when it is created.

One is therefore dealing with an “author” and a “work”. Both these terms are inseparably linked: without an author there is no work, and without a work no author. It should be noted that Section 1 does not deal with all the relevant rights but only with what are known as “exploitation rights”. “Personality rights” are not dealt with until Section 25 of the Act.
Who is the author?
The author of a work is the person who has brought the intellectual creation into being (Section 4 of the Copyright Act). The author is almost always also the “titleholder”, i.e. the person who holds the copyright.
The Copyright Act includes the following three provisions whereby, in deviation from the basic rule, someone other than the actual author holds the copyright. That person then counts as the legal “author”.
  1. If the work has been created according to a different person’s design and under that person’s direction and supervision, then that person is deemed to be the author of the work (Section 6 of the Copyright Act).
  2. If activities carried out in the context of employment involve producing certain works, then it is the employer that is deemed to be the author (Section 7 of the Copyright Act). At Dutch universities, however, matters are different where scientific/scholarly research is concerned and it is the researcher who is deemed to be the author. This website is based on that principle.
    A number of higher education institutions are working on a copyright policy – or already have one in place – that is based on these new principles or which incorporates this approach.
  3. If a legal entity – for example a private or public limited company – publishes a work as deriving from it without specifying a natural person as the author, then the legal entity is deemed to be the author of the work (Section 8 of the Copyright Act).
What constitutes "a work"?
Section 10 of the Copyright Act specifies when one can speak of a “work”. That section gives a non-exhaustive list which shows that a “work” need not just be a book, a brochure, or another piece of writing but can also be an oral presentation, a piece of music or choreography, an architectural or photographic design, a computer program, or a database.

A “work” within the meaning of the Copyright Act is an embodiment of the author’s ideas, thoughts, or feelings that is in some way perceptible to the senses. In case law, the criterion has also been developed that the work must have an original character of its own or bear the personal stamp of the author.

Ideas, thoughts, methods, theories, etc. are not protected.
What does copyright contain?
Exploitation right
Copyright gives the author the exclusive right to a) publish his work and b) duplicate his work. These rights are jointly referred to as the exploitation right.
  • Publication;
    The Copyright Act does not give an actual definition of what constitutes publication but Section 12 provides a list of examples of what it includes. Briefly, one can say that the term “publication” means bringing the work to the attention of the public in some way or other. This includes publishing it in printed form, lending it out, or presenting it in public. Publication also includes providing the work electronically, for example by making it available on a computer or in a network (open or closed).
  • Duplication;
    The Copyright Act does not give a definition of duplication either (duplication is dealt with in Sections 13 and 14 of the Act). Duplication includes producing copies containing the work, for example by having a publication printed, making an old-fashioned photocopy, scanning, or uploading documents. Adapting or translating are also types of duplication, as is storing a work in a computer memory.

Personality rights
Besides the right of exploitation, the Copyright Act also provides for “personality rights” (or “moral rights”). These are rights that are so closely associated with the person of the author that they cannot be transferred to another person. The author can, for example, oppose the publication of his work without his being credited or under another name. He can also protest against the name of the work being changed or against radical changes being made that may damage his good name.
Personality rights cannot be transferred, but the author can waive them. One exception, however, is the right to oppose any distortion, mutilation or other damage to the work that might harm the reputation or good name of the author or his merit in that capacity (Section 25(1)(d) of the Copyright Act).
How can others make use of your copyright?
An author can make use of his copyright in a number of different ways. He can exercise all his rights himself, but he can also allow others to do so – for example a publisher – by transferring his rights or granting a licence. Even though, nowadays, there are many new methods of publication that make it easier for an author to publish, authors still often choose to transfer their rights to a third party. If he decides to do this, the author can decide for himself what components of his copyright he wishes to transfer; he is certainly not obliged to transfer the entire copyright unconditionally.
  1. Transfer
    Section 2 of the Copyright Act provides that the transfer of copyright – whether in its entirety or just in part – can only take place in writing. The transfer applies only to those powers that are expressly stated in the agreement or that necessarily arise from the nature or scope of the agreement.Opinions differ as to just what rights are transferred in such a case. Some authorities apply a narrow interpretation of Section 2 while others interpret it more broadly.
    The narrow interpretation assumes that only those rights are transferred that the parties consider necessary for the intended use and that were their primary consideration when they concluded the agreement. If one wants it to be perfectly clear what rights are being transferred, then one must specify them as precisely as possible in the contract.
    The broader interpretation is to the effect that a transfer formulated in general terms is possible, without a precise specification of all the particular rights that are to be transferred.
  2. Transfer of future works and types of exploitation
    The Copyright Act says nothing about the transfer of future works. In practice, it is possible to transfer works that have not yet been written if the content and nature of the work concerned has been specified sufficiently. The provision “transfer of all copyright in the works that the author will create in the future” is extremely broad. Tightening it up gives the author greater protection against the full transfer of his copyright.
    The Copyright Act does not say anything either about new types of exploitation such as those that have come into use in recent years, for example the Internet and the CD-ROM. Transferring the rights in respect of as yet unknown types of exploitation is possible if this takes the form of a clearly specified full transfer of rights.
    In practice, this means that the author can normally distribute publications from before 1997 – the date of general introduction of the Internet – for example by including them in an institution’s repository. As regards works from after 1997, authors are expected to know that an overall transfer also includes the electronic rights. Since 1997, many publication contracts have in fact been amended by explicitly specifying electronic rights.
  3. Licensing
    Granting a licence can produce the same result as transferring rights. A licence is no more than permission granted by the copyright holder to carry out certain actions that are covered by copyright. Contrary to what happens in the case of a transfer, an author who grants a licence retains his copyright.
    The difference between transferring and licensing can be compared to the difference between selling and renting out your house. If you sell it, there is a new owner; if you rent it out, you only give someone else the right to use it.

     
Does copyright stay in existence forever?
Copyright continues to apply for 70 years after the death of the author. When the author dies, the copyright is transferred to his heirs.
What is allowed without asking permission?
In order to encourage the distribution of information, the Copyright Act lists a number of exceptional situations in which the author’s copyright is restricted (the “statutory restrictions”).
The main restrictions from the point of view of higher education are set out in Sections 15 and 16 of the Copyright Act. In such cases, the material cannot be used without the consent of the author. In some cases, the user is required to make fair payment to the author, for example if a work is included in a reader. This is arranged for all higher education institutions in the “Reader Agreement” (in Dutch).

Scientific/scholarly material can be used without permission for:
  • Performance/presentation for educational purposes if this serves a scientific/scholarly purpose;
  • Quoting from a work;
  • Use of a section for educational purposes;
  • Copying for one’s own practice, study or use; 
  • Making a work available, via a closed network, that forms part of the collections of publicly accessible libraries;
  • Duplicating a work for the sole purpose of restoring the copy of the work that an institution holds, ensuring that it remains available if its technology becomes obsolete, or preserving the work for the institution if it is likely to deteriorate.
What are technical functionalities?
A work may be protected by means of certain technical functionality.
The Copyright Act defines such functionality as technology that prevents or restricts actions for which the copyright holder has not given permission. Someone who circumvents or “hacks” such functionality and knows – or ought to know – that he is doing so is acting contrary to the Copyright Act. Such functionality includes passwords, encryption, or copy protection.


Information derived from SURF - Copyright in higher education.