16 February 2015CopyrightMichiel Rijsdijk

The locus of copyright

However, according to US copyright law, works published after 1923 are protected for 95 years from the time the work was first published in Europe. According to the Mondrian Trust, this means that one cannot publish all the Mondrian works online, regardless of whether the online publisher is located in or outside the US, or has a website with a European domain name extension. According to the Mondrian Trust, US citizens are able to visit such websites and therefore US copyright law is applicable, meaning those works are subject to the longer term and an online publication would constitute copyright infringement.

The Municipal Museum of The Hague in the Netherlands disagrees with the trust. According to the museum, Dutch copyright law is applicable, as Mondrian was a Dutch citizen. The museum will be publishing a website dedicated to Mondrian on March 7, 2015—his birthday—so the question of who is right is timely.

To determine whether copyright still exists in Mondrian’s work, the applicable law needs to be determined. Under Dutch law, copyright is applicable to works created by Dutch citizens in the Netherlands, but US copyright law also dictates that US law is applicable.

Both US and Dutch law state that a work enjoys 70 years of protection after the death of its creator. As 70 years have passed since Mondrian died, under Dutch law his work no longer enjoys copyright protection. But as noted, US law provides a special consideration, according to which some of Mondrian’s works would enjoy 25 years of extra protection in the US. Therefore if these works were published on the internet, one could argue that this publication, at least under US law, would  infringe the copyright.

This has already led to a conflict between the Trust and the Dutch newspaper Trouw, which published images of the works on its website. According to the trust, if Americans were to visit Trouw’s website (and similarly, the museum’s website), Trouw would infringe the extended US copyright.

"Dutch copyright protection agencies that have tried to block access from inside the Netherlands to ‘foreign’ websites know how difficult it is to get access blocked."

Does this mean that an image can’t be reproduced online if it still enjoys copyright protection in the US, even if the work and artist originate from a different country? Trouw didn’t wait for an answer: it took a photograph of the work in question (in this case Victory Boogie Woogie) but with a lady and a buggy next to it. The picture was named ‘Victory buggy wuggy’.

The Netherlands and the US have both signed the Berne Convention. Based on article 7 (8) of the convention, a work’s copyright term is governed by the legislation of the country where protection is claimed and will not exceed the fixed term in the work’s country of origin. Therefore if the Mondrian Trust claims protection in the Netherlands, Dutch law is applicable and the copyright has expired.

The Mondrian Trust reasons that US law is applicable for online use in general, since US citizens, as well as any other internet users worldwide, can access the online publications. But the internet is not US territory.

The question that needs to be answered further is therefore which copyright law is applicable to online publications. Even if one would consider that the availability of an online publication in the US means US copyright law is applicable, this would mean that access for a US internet user to the website should be blocked, not the website’s access to the whole world.

Having said that, Dutch copyright protection agencies that have tried to block access from inside the Netherlands to ‘foreign’ websites know how difficult it is to get access blocked. Perhaps the trust has a chance in the US against works clearly being published in and for the US, but I believe the museum is free to publish the images on the nationality-free World Wide Web.

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

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