1 August 2010CopyrightMichiel Rijsdijk

Until death do us part: stopping copyright transfer

The government proposes making it impossible for the natural creator of a work in the Netherlands to transfer its copyright.

What is going on? With the growing possibilities for exploiting a work (e.g. through the Internet), the position of natural authors in negotiations has weakened against whoever administers their work. Therefore, the Dutch government wants to create a stronger position for natural creators. To strengthen their position, the proposal prevents a natural author transferring his work.

This is significantly different to the current situation, which allows the author to transfer all or part of his copyright or give it in licence to another. According to the proposal, a natural author can only give all or part of his copyright in licence. It is only after the death of an author that copyright can be transferred.

The Dutch government’s proposal takes a monistic view of copyright. Formerly, the Netherlands adhered to a dualistic system; the rules had property law consequences and obligation law consequences. The proposal to prevent the transfer of copyright away from a living author effectively scraps the property law implications of copyright.

The proposed copyright contract law gives the author more influence over the exploitation of their work by introducing a termination clause at the end of every five-year period and the mandatory right to a fair remuneration for the author. This means that if a work is not well exploited, the author can terminate the contract and search for another licensee or change the content of the contract.

If a work is not being exploited or when certain provisions are evidently disproportionate, the proposal foresees a mandatory right to nullify or alter the agreement. Currently, a natural author does not have these mandatory rights and if a copyright is transferred, the creator has no more influence on the exploitation of their work except with regard to personality rights.

“According to the proposal, a natural author can only give all or part of his copyright in licence. It is only after the death of an author that copyright can be transferred.”

Another alleged positive effect of the proposal results from the five-year termination clause. This provides a stimulus to the licensee to use and exploit the work and therefore to innovate. According to the government, the five-year period strikes a balance between the interests of the author in having control over their work and the interests of the licensee in investing and exploiting the work. Five years is sufficient time for the licensee to successfully exploit a work.

This rule might cause problems in the future, since the time required to successfully exploit a work differs depending on the type of work, and successfully exploiting a work does not necessarily mean that a licensee has already earned back the initial investment in the work.

This could also have the consequence that possible buyers do not wish to enter into a licence agreement in case the author terminates the contract on the suspicion that their work is not being exploited at its best, while the reality may be that the licensee needs time and investment to increase the chance of fruitfully exploiting the work.

Another downside of the proposal is that the copyright of a natural owner will no longer be regarded as a property right and therefore will not be transferable, whereas that changes as soon as the author dies. This seems inconsistent.

Further, the new copyright contract does not affect works made by ‘fictive authors’. These are works made by employees or works disclosed as stemming from an organisation without mentioning a natural author. Those works are therefore regarded as property rights and can be transferred. It raises the question: can an author circumvent the consequences of the proposed law by means of making a work as employee of their own company?

How this problem and other problems that result from a new copyright act will be solved is for the courts to decide in the future. For now, this proposal is open for public consultation until the end of August 2010. The public’s response might cause the government to rethink its proposal, which could benefit the industry. We will keep a close eye on it.

Michiel Rijsdijk is a partner at Arnold + Siedsma. He can be contacted at: mrijsdijk@arnold-siedsma.com

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