The threshold for obtaining copyright protection in the Netherlands is low and entitlement arises when the object is a “work protected by copyright”. In case law this criterion has been given more substance. Copyright protection is granted for works that have an original and individual character and the ‘personal stamp’ of the maker.
This (in essence) means that (1) the work is not derived from another work; and (2) the work’s design was the result of human labour and therefore creative choices. In addition, it excludes anything that is necessary for a technical effect.
A copyright infringement exists when the work of another party gives the same overall expression as the original work, meaning the second party’s work cannot be seen as an independent work.
Recent case law
A June 8 verdict of the Rotterdam District Court once again proved how easily copyright protection is granted. The plaintiff and Esveco (defendant), a graphics company, were in disagreement over whether a certain card game and the allocation of the cards within the game can be protected by copyright law. Esveco had created a ‘new’ game that was nearly identical to the plaintiff’s earlier game (Korpa).
Both games had the same layout: a rectangular field of 14 cards pictured in exactly the same order, with the title in the middle. In the plaintiff’s game it said “Korpa! Simpel Super Snel Kaartspel” (“Korpa! Simple Super Fast Card Game”) and Esveco’s said “Korpa! Kort Bingo Med Joker” (“Korpa! Short Bingo Med Joker”) and “Kortbingo Cardbingo Kaartbingo” (“Short Bingo Card Bingo Card Bingo”).
The defendant claimed that the plaintiff’s game Korpa was derived from an (even) earlier work and that it is a variation of the classic bingo game where, instead of a numbered ball, a playing card is drawn. The defendant considered the choices that were made to create the game were trivial rather than creative, or made for technical reasons. Moreover, the plaintiff had not proved that it was the first party to create the game, according to the defendant. To this end, the defendant submitted as proof print screens of a similar game that it stated had existed earlier than the Korpa game.
"In the Netherlands it is considered that even the allocation of cards in a playing deck is protected by copyright."
The court considered that the Korpa game met the “work protected by copyright” criterion because of the creative choices that were made and the manner in which the cards were organised. The court deduced this from proof that the plaintiff submitted: a document with different variations of the game it had considered before creating the game. Furthermore, the defendant had not specified why the choices had only been functional, according to the court.
Regarding the argument of the earlier existing game, the submitted print screens did not prove that the shown games already existed when the Korpa game was developed, for they had a later date stamp. The court found it would be up to the defendant to substantiate this argument because it was the one who claimed the Korpa game was not original. The court concluded that the Korpa game can be protected by copyright, for it is a “work protected by copyright”.
In the Esveco game 14 cards are shown, the same number as the Korpa game, and the allocation of the cards in both games is identical. Only the words in the middle differ somewhat. The court considered that the overall impression of the two games is therefore (nearly) identical.
The Esveco game is not an independent, new and original work. The fact that the Esveco game is smaller and the corners are slightly rounder than those in the Korpa game is irrelevant in that context, according to the court. The court consequently decided in favour of the plaintiff.
In the Netherlands it is considered that even the allocation of cards in a playing deck is protected by copyright. Although the defendant believed that a comparable game already existed before the Korpa game, its problem with proving this was the date of the print screens. It seems that a work is considered to fulfil the criterion of being a “work” as long as the other party does not prove the contrary. As a defendant it is important to prove the earlier creations of (nearly) identical works. Who knows what the outcome of the Korpa ruling would have been if only the date stamp had been right.
Michiel Rijsdijk is a partner at Arnold + Siedsma. He can be contacted at: email@example.com
Michiel Rijsdijk, Arnold + Siedsma, copyright, copyright protection,