On 1 July 2015, the Dutch Copyright Act was amended as a result of the adoption of the Copyright Contracts bill. This legislative change primarily concerns authors of copyrighted works and aims to improve their legal position.
1. What is the reason for this legislative change?
The copyright contract legislation was prompted by the rationale that authors, specifically those authors (such as writers and composers) whose works are utilised extensively by third parties, have a weak position that must be improved. A factor in this has been that the balance of power between the author (a natural person) and the licensee (often a large business) is frequently skewed. The legislator’s aim is to rectify this imbalance by explicitly granting specific rights to authors, which rights also serve to improve their negotiation position.
2. What are the main changes?
The author’s rights contract provides for the following stipulations that form part of mandatory law (that therefore cannot be deviated from in a contract) and that cannot be waived:
• The author is entitled to fair compensation for granting permission for his or her work to be used (to be published and reproduced).
• An additional, reasonable compensation will be arranged for types of uses that are not yet known at the time the exploitation agreement is concluded.
• In addition, an additional reasonable compensation will be arranged to cover instances in which the work being utilised (unexpectedly) proves to be a bestseller (consider successes such as the Harry Potter books).
• The author is granted the right to dissolve an (exclusive) exploitation agreement if the licensee does not use the work to a sufficient extent.
• The author will be able to have stipulations that are unreasonably onerous declared null and void.
• The author of a scientific contribution is entitled to publish the work online himself once a reasonable period after (the initial) publication has elapsed.
• An arbitration committee will be set up to settle disputes between authors and licensees.
The copyright contract legislation will be applicable to contracts of which their main aim is to regulate the utilisation of the author’s work. Performing artists such as actors and musicians will also be able to have recourse to the copyright contract legislation.
3. Will this result in a genuine improvement in the position of authors?
At the current time, this still remains unclear. With the copyright contract legislation only having come into effect very recently, there is no relevant case law available yet. Although the legislative changes appear to have a clear objective, the copyright contract legislation has so far mainly raised questions, including: What level of compensation is deemed reasonable? When should a work be regarded as a bestseller? When should a stipulation be considered unreasonably onerous? It is likely that the answers to those questions are dependent on industry-specific factors and the amended Act does not contain any provisions with regard to those factors.
4. In conclusion…
It will have to be determined in practice how the copyright contract legislation must be interpreted and in order to receive answers, authors will undoubtedly need to bring questions before a court. What the copyright contract legislation does achieve, however, is that unfair contracts have become practically impossible. After all, in many cases they will be deemed to be unreasonably onerous upon the author. Furthermore, it will be important to review (current) exploitation agreements in relation to copyright on the basis of the new legislation.
