Sjoera Nas (sjoera/at/bof.nl), Bits of Freedom
The main copyright law in the
The Copyright Act is written in generally technology-independent language, centred on the two key terms of reproduction and ‘making public’. In other countries like Germany, the United Kingdom and the United States every media revolution (radio, television, cable, computer, the Internet) caused a copyright crisis. Since the Dutch framework wasn’t built around media-specific exploitation rights, legislators were able to modify specific sections, without having to rewrite the full body of the law.
This chapter opens with a time line. During the full five years between the release of the first draft of the European Copyright Directive (10 December 1997) and the final transposition deadline (22 December 2002), there has been a long and serious debate in the Netherlands about the renewal of the Copyright Act. The debate centred on the future of the private copy and the translation of ‘fair compensation’. Many lawyers argued the Dutch system of putting levies on blank recording media could be maintained, as long as ‘compensation’ could also be understood to mean zero compensation in specific cases. Another issue of great disagreement was the transposition of Article 6.1, the protection of technological measures.
To allow comparison of the Dutch debate with discussions in other EU member states, this report deals with four specific themes separately: Exceptions and limitations (Art. 5.2 and 5.3); the circumvention ban (Art. 6.1); the private copy (Art. 5.2b) and levies (translating ‘fair compensation’).
The debate in the Netherlands about new copyright legislation for the information society begins in November 1997, a month before the release of the first draft of the Copyright Directive. The Minister of Justice creates a special copyright committee to advise him on the application of copyright legislation to new media such as CD-ROMs. In August 1998 this committee produces its first report, based on the initial EUCD proposal[2].
The committee advises that consumers should be protected against overly restrictive end-user licenses by granting ‘minimum user rights’. That way, reading, listening and watching can remain free in a digital environment. The committee also recommends that the legislature provides that legal limitations on copyright that reflect interests ‘of a general and fundamental character’ (freedom of information, privacy and property) can not be undone contractually[3].
In May 1999 the Minister of Justice, together with the State Secretary of Culture (residing in the Ministry of Education, Culture and Science) presents a letter to parliament with his main intentions for the transposition. The Minister advises there should be minimal changes to the Copyright Act, that self-regulation should be used to solve practical problems and, generally, that parliament should seek a balance between the right to make copies for private use and the rights of rightsholders.
In November 1999 the letter is discussed by the Lower House Committee on Legal Affairs. A month later the Minister answers their questions, and in May 2000 the proposals are discussed in a general session of the committee[4]. The Minister promises the House that the “Dutch government will do its best (in Brussels) for ‘credible and enforceable’ protection of rightsholders”’, whilst also lobbying for a compromise on the private copy.
“The Minister attaches great value to a certain freedom of consumers to copy material for their own private use. It doesn’t matter whether it concerns cassette tapes, CDs, the Internet, magazines or digitally distributed broadcasting signals.” At that point in time, the Minister reassures the House that he expects Brussels will make sure that technological protection measures won’t extend so far that they will make the legal limitations on copyright useless. “There have also been pleas to guarantee the private sphere in the digital environment. A private copy must be possible.”
In September 2000, the Minister asks the copyright committee to produce a second report, following the new draft Copyright Directive proposed by the Council, after the first draft was rejected by the European Parliament. From October onwards, the Ministry of Justice opens a public consultation on the proposal. Though there is much applause for the initiative to use a website to consult the public, the 76 questions are so complex that only expert copyright lawyers can answer[5].
Meanwhile, in February 2001, the European Parliament concludes a second reading of the proposal and adopts nine amendments to the Council’s common position. The amended Directive is accepted by the Council on 22 May 2001 and published in the official journal on 22 June 2001 as 2001/29/EC. The transposition deadline is set for 22 December 2002.
The second report of the copyright committee appears – most timely – in July 2001. This report is also available in English[6].
The committee was asked to answer four main questions.
1. Should there be a fundamental revision of the existing legislative system of copyright and related rights?
2. Should the current list of limitations to copyrights be amended?
3. In what manner may the term ‘fair compensation’ (‘billijke vergoeding’ in the Dutch version of the Directive) be implemented?
4. How should the circumvention of technical protection measures be restricted in national legislation?
Roughly summarised, the committee answered as follows:
1. No, adaptation of the Copyright Act is sufficient
2. The directive is self-contradictory, striving for a maximum level of protection (Recitals 7 and 9) whilst also recommending a fair balance between the rights and interests of rightsholders and users (Recital 31). The Ministry should stick to the limitations and exceptions already incorporated in the Copyright Act. The only new limitation that should be added is the parody exception (5.3(k)).
3. Use the term ‘reasonable reward’ (redelijke tegemoetkoming) instead of ‘equitable renumeration’. A reward can consist of something other than ‘money’, specifically in the cases mentioned in Article 5.2 under a, b and e (i.e. the photocopy, the private copy and re-broadcasting in prisons and hospitals).
4. Adhere to the text of the Directive as closely as possible. According to the committee, the topic is subject to maximum harmonization and Member States are not free to deviate from the Directive’s provisions. Just include a delegation provision to enable the legislature to take rapid and effective measures.
On 15 October 2001, the Minister presents his conclusions on the report of the copyright committee to the Lower House. In November 2001, experts are asked once again to give their input on a draft version, published on the website of the Ministry of Justice.
On 1 May 2002 the draft Copyright Act is sent to the Council of State for formal legal advice. The advice of the Council is discussed in the outgoing Council of Ministers on 12 July, and sent to the Lower House on 22 July 2002.
The Council of State rejects the proposed difference between equitable remuneration and reasonable reward. Only one term should be used in the Act and that should be remuneration (billijke vergoeding). This remuneration should be fixed in the text of the Act itself, and not referred to in delegated provisions, as the Minister proposed. The Minister, in his answer, refers to Recital 35 of the Directive. This leaves ample space to introduce a system of remuneration later on through delegated provisions.
In an interesting side note, the Council criticises the Minister for interpreting the Directive too narrowly when it comes to the private copy. The draft Copyright Act speaks of ‘a few copies’ for private use, while the Directive speaks of ‘reproductions’ without any limit on the number. According to the Minister, the Member States are free to limit the limitations, and therefore he is allowed to narrow down the right to make copies for private use.
The Council of State agrees with the copyright committee on the literal transposition of Article 6.1 (section 29A in the Dutch Copyright Act). On top of that, the Council recommends the criminalization of any circumvention of technological measures. Under the current Copyright Act, circumvention is only a criminal act when it comes to computer programs (section 32a).
Finally, a large section of the report of the Council of State is dedicated to criticism of the vagueness of the ‘three-step test’ embedded in the Directive’s Article 5.5 to decide whether limitations and exceptions apply. Debate about these very open norms (special, normal, unreasonable) forms an important part of further parliamentary debate, but is legally too complex to be dealt with in this overview.
On 22 July 2002, six months before the transposition deadline, the Lower House receives the modified draft Copyright Act[7].
In October 2002 a coalition of 31 experts, scientists, lawyers and cryptographers sends an open letter to members of parliament, urging them to respect user rights when it comes to the circumvention provisions and to explicitly protect cryptographic research. A summary of this letter is also published in the Financial Daily (Financieel Dagblad), in February 2003[8].
Some of this criticism is reflected in questions asked by members of parliament in the Lower House Committee on Legal Affairs in November 2002. The Minister answers in March 2003, but doesn’t answer any of the criticism on user rights and cryptography. However, the Minister makes it explicit that downloading music or film via peer-to-peer networks does not constitute a criminal act.
Members of the Liberals, the Green Party and the Social Democrats agree the new proposal still does not do enough to protect user rights, and insist on an extra round of questions. Some of the 31 experts participate in this extra round in early May 2003, including Bits of Freedom in collaboration with IT lawyer Christiaan Alberdingh Thijm.
MPs from these three parties (representing a majority in parliament) protest against the general ban on the circumvention of digital locks. According to the proposal, it is not just prohibited to break locks in order to make illegal copies. The circumvention ban prevents any restricted use, even if the lock prevents perfectly legal behaviour.
Within two weeks, the Minister answers the questions, basically not changing the law except for the removal of the limitation of the private copy to ‘a few copies’. In spite of the parliamentary majority, he refuses to limit the circumvention ban to (legitimate) protection of copyright.
Answering questions about the negative effects of copyright protection mechanisms on CDs, the Minister asserts that it is enough for the industry to label their CDs. If a CD cannot be played in a regular CD player, the store is required to change it. But the Minister doesn’t want to extend this right to CDs that don’t play on CD-ROM players built into computers, because, according to the Minister, “they are not made for that purpose.”[9]
The amended Copyright Act is not yet on the agenda for plenary debate in the Lower House, but is expected to appear in September, after the summer recess.
Since the Dutch already enjoyed most of the exceptions and limitations described in Article 5.2 and 5.3, there was not much debate about this part of the Directive, except for the right to make a (digital) private copy (which is dealt with separately in the next section of this chapter). However, the legal discussions about the interpretation of Article 5.5, the so-called ‘three-step test’ make interesting reading.
The (second) copyright committee started with four principles: to keep as many exceptions as possible; to accommodate the widely felt need for new or newly formulated exceptions (notably parody); to create technology-independent definitions and finally, to find creative solutions for the problem that the Directive does not allow for a generic ‘fair use’ principle.
Following these principles, the committee advised to add the parody right, but to refrain from including 5.2(e), 5.3(b) and 5.3(l). In the words of the committee: “the fact that some exemptions are not explicitly included in the legislation must not give rise to any a contrario arguments. Exemptions are usually expressions of an underlying principle and related to the protection of the public interest. In some cases, the committee has taken the opportunity to codify the existing legal practice, but it may not be deduced from the fact that this does not occur with respect to other cases referred to by the Directive that such an underlying principle or general interest is not at issue.”[10]
This way, the committee sought a solution for the fact that in the Directive the rights are formulated in an open-ended manner and apply to new exploitation techniques while the statutory exceptions focus on specific cases. The Minister agreed with this solution, and explicitly referred to the need to allow judges to explain the law with respect to the public interest and rapidly changing technology. The exceptions mentioned in paragraphs 5.2 (d) and (e) (usage and rebroadcasts in non-commercial institutions like prisons and hospitals), 5.3(b) (physically disabled people) and 5.3(l) (demonstration and repair) were rejected because there are already self-regulatory arrangements in place.
A refined legal debate centered on the so-called three-step test introduced via Article 5.5. This Article is not directly incorporated in the Dutch Copyright Act. The provisions in treaties on which this paragraph is based (Article 9(2) Bern Convention, Article 13 TRIPS) are not included in the Act either.
According to both the copyright committee and the Minister, Article 5.5 addresses the Member States’ legislatures. The Article establishes a normative framework against which the legislature must test the exceptions and limitations to the rights. Still, (civil) courts can apply this provision to specific cases.
The Council of State was very critical about this interpretation and wished to see Article 5.5 embedded in the actual text of the legislation.[11]
The Minister defended his position with a reference to Recital 44, that all limitations must anyway be applied in accordance with international agreements. The law is the end-result of this test, and thus, logically all limitations have been subjected to this test by the legislature. Besides, the Minister added, at that point in time (12 July 2001) none of the other Member States had chosen to include Article 5.5 directly in their copyright legislation.[12]
In the following Explanatory Memorandum accompanying the Act the Minister explained:
“The “three-step test” serves as a general assessment framework for the legislator. However, this has not led to its inclusion in the actual text of the legislation. The article offers a normative framework against which the legislator can assess limitations to the rights. This framework also offers the court some grip in interpreting a certain limitation and specifically on how it is to be applied in practice. Court rulings in this context may well be occasion for the legislator to adjust the provisions that are now proposed.” [13]
Members of parliament saw a contradiction in this approach, and asked for further clarification. A large majority of liberals (VVD and D66), Greens (Groen Links), conservatives (LPF and SGP) and Christian Democrats (CDA) want to see the three-step test embedded in the Act, in order to clearly enable courts to apply the test.[14]
While repeating his earlier arguments, the Minister also summed up some disadvantages of inclusion of the test in the Copyright Act. First, the logical consequence would be that some very specific limitations would need to have a more open character, to be corrected only by the three-step test. Such a way of formulating the limitations would create great uncertainty about the validity of any appeal to the limitations and exceptions. Second, the Minister referred to international literature in which it is argued that the three-step test was not developed to answer specific questions about limitations. Finally, including Article 5.5 in the Dutch Copyright Act would give this implementation a ‘status apart’, because government had purposefully refrained from doing so during all previous implementations of international agreements. [15]
During the second debate members from the social-liberal party (D66) insisted once more on inclusion of the test in the Act. According to them, Article 5.5 is different from the tests embedded in other international agreements, because it does directly address citizens and courts. Besides, they don’t understand the difference between this test and the test described in Article 8 of the Database Act (EC Publication Official Journal 1996, L 77/20) that is directly included in the Dutch Database Act.
According to the Minister, the Database
test is only a two-step test, lacking the reference to ‘special cases’. The
three-step test is a correction mechanism for the balance between users and
rightholders, the Database Act only sets a minimum standard for usage of
databases.[16]
The Dutch debate about the private copy is centred on the interpretation of Recital 35 of the Directive: “in cases where rightsholders have already received payment in some other form, for instance as part of a license fee, no specific or separate payment may be due... In certain situations where the prejudice to the rightsholder would be minimal, no obligation for payment may arise.”
The Dutch government has always held the view that under the Directive it should be possible not to demand financial compensation for the digital private copy, but instead to rely on levies to compensate rightsholders. As described previously in the timeline, government officials have actively promoted this point of view in Brussels, at least since 1999, when they made their intentions known in a letter to Parliament. With the report from the copyright committee, this line of reasoning becomes clearer.
The copyright committee introduced the new term ‘reasonable reward.’ “The Committee prefers the term ‘reasonable reward’ (redelijke tegemoetkoming) in order to make it clear (as apparently intended by the Directive) that this term differs from the already well-known term ‘equitable renumeration’ and also to make clear that the reward may also be made in a form other than a claim to compensation (e.g. a subsidy claim) and also consist of something other than ‘money’. The term ‘reasonable reward’ provides the Member States with a great deal of freedom.”[17]
The committee noted that according to the Directive all kinds of private copying must be tied to a reasonable reward. In the Dutch Copyright Act of 1912, the private copy, if limited to a few copies and strictly for personal practice, study or non-commercial use, is exempt from copyright. Only when music and moving images are reproduced for private use is compensation required, specifically through the levy system for blank media.
The Directive requires the creation of a reasonable reward for all private copies, and that is unreasonable according to the committee. Instead, they propose the introduction of a distinction between two kinds of private copy, namely “reproductions on objects intended to play or show works” on the one hand, and on the other “reproductions for private use, such as reprographic reproductions, but also resketching, reknitting, remaking and other forms of ‘handicraft’.”[18]
The minister followed this advice, creating two kinds of private copy.
The first kind of private copy specifically deals with analogue copies, like photocopies and handicrafts. For these copies a ‘zero-levy’ can be introduced, to make sure grandma is not violating copyright when she knits a sweater for her grandchild with a picture of Mickey Mouse without the explicit permission of Walt Disney.[19]
“It shall not be deemed an infringement of copyright in a literary, scientific or artistic work, to reproduce it in a limited number of copies for the sole purpose of private practice, study or use of the natural person who makes the copies or orders the copies to be made exclusively for himself and for non-commercial ends.” [20]
To allow for digital private copies, the existing provision about reproducing sound and moving images is amended. For reproductions of sound and moving images on ‘objects’ a ‘reasonable reward’ (redelijke tegemoetkoming) is due. In practice this compensation is collected through the levy on blank recording media.
“It shall not be deemed an infringement of copyright in a literary, scientific or artistic work to reproduce (part of) this work for non-commercial ends on an object intended to play or show the work provided that the sole purpose of the reproduction is for personal practise, study or use of the natural person making the reproduction.” [21]
This second provision extends the private copy to the entire digital domain, including for example copies of a text CD-ROM. According to the Minister, the ‘fair compensation’ for these new kinds of digital private copies should be sought within the levy system, until new digital rights management techniques make the levy superfluous.
Closely read, this first draft transposition tried to balance the different interests, with some creative extras. The limit of the number of allowed private copies (‘a few’) seems invented by the music industry. On the other hand, the introduction of the term ‘reasonable reward’ is a brave attempt to extend the right of the free private copy to the digital domain. However, in combination with the suggested transposition of Article 6.1 of the Directive, the legal discussion about the quantity and exact kinds of private copy seems almost futile.
During the first debate in the parliamentary committee on legal affairs on the draft, in November 2002, members of parliament asked for more clarification on the two terms. Members of the Christian Democrat Party, the Greens and the SGP asked for clarification about the two terms and claimed they would much rather see one term instead of two.[22]
Members from the Christian Democrat party also wanted the Minister to add that an original must always be legally obtained before a legal private copy can be made. In the explanatory memorandum, the Minister explained why he declined to do so, but the Christian Democrats are concerned about the laundering of illegal copies through peer-to-peer networks. To further clarify this, they wished to add that a private copy can never be made for a third party.[23]
The Minister explained once more why the different terms were chosen (equitable remuneration and reasonable reward), to be able to distinguish between special kinds of reproduction that don’t cause any prejudice to rightsholders (like knitting) and the private copy of music, text and moving images. But to prevent further confusion, he changed the wording to the literal translation of ‘fair compensation’, i.e. ‘billijke vergoeding’.[24]
The Minister agreed with the necessity to limit the possibility to create a private copy for third parties. Under the old Copyright Act the limitation was valid for “the person who makes the copies or orders the copies to be made exclusively for himself.” To limit the possible role of third parties, a new paragraph is added to the proposal that only allows these orders within the closed circle of family and friends.
When it comes to KaZaA and other peer-to-peer services, the Minister drew a clear line. That kind of private use is exempted from copyright. “That also applies when a private copy is made from an original that is illegally made available, without the permission of the author.”[25]
The term laundering is not appropriate, the Minister said, since it is a copyright infringement when such a private copy is made available to the public again. The Directive simply doesn’t allow for such a ‘legal original’ demand, according to the Minister, and even if such a demand was allowed, enforceability would be highly dubious. Finally, the demand for a legal original would clearly harm the collecting societies, since that would be a reason to lower the levies.[26]
In the extra debate in the Lower House Committee on Legal Affairs, in May 2003, members of the Christian Democrat Party indicated that they did not understand this last argument. They are not happy with the possibility of allowing third parties to make a private copy, even when that’s limited to the ‘closed circle’.[27]
Members from the Social Democrat party demanded the exact opposite; they wanted to know whether a virtual circle of friends, people that for example only meet online, can also rightfully share their collection of music and films.
In the most recent series of answers, the Minister explained that the use of ‘fair compensation’ doesn’t exclude the possibility of a ‘zero-levy’ for specific exceptions. The provision about ordering a third party to make a few private copies will be removed from the draft, to make it absolutely clear that the private copy can never be made by a professional third party or shared outside the literal circle of family and friends. Finally, the reason the Directive and the Dutch draft omit the need for a legal original is because the compensation is meant for every private copy. If only legal originals were subjected to a levy, government would put a premium on the copying of illegal originals.[28]
The final proposal for the digital private copy will be presented to the Lower House after the summer recess.
“It shall not be deemed an infringement of copyright in a literary, scientific or artistic work to reproduce a work or part of it, on condition that reproduction happens for ends that are neither directly nor indirectly commercial and for the sole purpose of private practice, study or use of the natural person who makes the reproduction.”
Since 1977 the Netherlands has had a levy system to compensate authors and publishers for reproductions on paper. In 1991 a new levy was introduced, to be collected on blank recording media such as CDs or cassette tapes. Like Denmark, Finland and Sweden, the Netherlands do not have a levy on recording devices or equipment[29]. Since 1 July 2003, a levy has also been collected on blank DVDs.
The Dutch debate about levies is focused on the possibility of including new media within the copyright framework. There is no debate about expansion of the levy system to equipment or devices like hard disks.
With regards to the future, the Dutch government has high hopes that digital rights management will make levies in a digital environment superfluous in the near future. Unfortunately, there is no debate about the negative side effects of these systems, for example the privacy aspects of the ability to monitor reading patterns of individual users.
Though from time to time some criticism surfaces about levies on media like CDRs that are often used to make back-ups or for other non-copyright related purposes, in general the levy system on blank media seems to create a fair balance between the interests of users and rightsholders.
According to the 1912 Copyright Act (Auteurswet) and the 1993 Law on Related Rights (Wet op de Naburige Rechten), everyone who imports or manufactures blank recording media is required to pay a levy. The levy is collected by the Stichting Thuiskopie (Private Copy Foundation). The levy is compensation for the reproduction at home – for strictly non-commercial purposes – of music and moving images.
The Private Copy Foundation divides the money amongst authors (composers, scriptwriters, poets, photographers and visual artists) and owners of neighbouring rights (performing artists and producers of audiovisual works).
Individual artists only receive compensation if they are member of a Collecting Society. The collected funds are divided amongst ten collecting societies. The exact division is based every year on detailed market research, but roughly speaking the funds are split equally between authors, performing artists and producers when it comes to audio and video. Twenty percent of the revenues from the new levy on writeable CDs is distributed to producers of games, while 80% of the amount goes to the receivers of the audio levies.
The exact amount of the levy is decided every year by SONT, the Foundation for Negotiation of Private Copy Compensation (Stichting Onderhandelingen Thuiskopievergoeding).
In typical Dutch conciliatory style, this Foundation is comprised of three rightsholders (members of the Private Copy Foundation) and three industry representatives (from the STOBI foundation, Stichting Overlegorgaan Blanco Informatiedragers). The Minister of Justice appoints the chairman and an independent adviser.
In 2000 the collected funds on blank recording media were 16 million Euro. In 2001 the levy included data CDRs for the first time. The total amount rose to 18 million Euro. More recent figures are not yet available.
15 percent of the total amount collected is used to fund general cultural and social activities.
Compensation for private copies on blank (non-professional) recording media are as follows: (2003 same level as 2002)
· blank analogue audio tape : €0.23 per hour;
· blank analogue video tape : €0.33 per hour;
· blank digital minidisc : €0.32 per hour;
· blank digital audio CD-R/RW : €0.42 per hour;
· blank digital data CD-R/RW : €0.14 per disk.
New levy on DVDs (fees valid through to December 2004):
· blank DVD-R/RW: €1.00 per 4.7 Gigabyte;
· blank DVD+R/RW : €0.50 per 4.7 Gigabyte;
· blank DVD-RAM : no levy
For blank DVDs with less or more capacity than 4.7 Gigabytes the compensation is set proportionally.
The legal framework for the collection of levies in the Copyright Directive is Article 5.2(b). The equivalent in the (final draft version of the) Dutch Copyright Law is section 16C, paragraphs 2 and 6:
“For the reproduction, described in the first paragraph, the manufacturer or importer of an object intended to play, show or reflect the work owes a reasonable compensation to the author or his legal successor(s).”
“Further rules and conditions may be laid down by order in council with respect to the objects regarding which the reasonable reward referred to in the second paragraph is owed. Further rules and conditions may also be laid down by order in council with respect to the performance of the provisions in this section relating to the form, applicability and amount of the reasonable reward.”
In the first transposition proposal (October 2001), the ministry created the ability to expand the levy obligation to new media by decree (without parliamentary control). In the explanatory memorandum, the ministry wrote: “This element must be seen in parallel with the provisions on technological measures (...).”[30] When it comes to enforcement, the ministry is very hopeful about pay-per-use models, and expects technological solutions to help decide on the amount of the compensation and the fight against piracy[31]. More specifically, the ministry thinks levies on new recording media are a temporary solution.[32]
In the revised explanatory memorandum, almost one year later, these high hopes for the technology-controlled private copy have evaporated. The Minister now opens the possibility of creating a new levy by delegated provision “when in the near future the volume of a certain type of reproduction for private use suddenly increases considerably”.[33]
This rather vague formula was criticised by members of parliament in the first round of questions, in November 2002. Why not arrange for this levy in the text of the Act, and what exactly is a considerable increase?[34]
The Minister answered that he is not currently considering creating a delegated provision to put levies on new media, but if he does, members of parliament will be duly notified once the rule is published in the official journal.[35]
In the second round of parliamentary questions, on 2 May 2003, members wanted to know on what products exactly a levy can be put. This specification would limit the ability to impose a levy on every medium that can carry text, audio or (moving) images. “Already too many people are paying a copyright levy on CD-Rs, while they only use them to record private (digital) pictures.”[36]
The
Minister loudly rejected this request, but made it clear that he has no intent
of creating new levies anytime soon. These issues must be solved by
self-regulation, according to the Minister. On top of that, rightsholders must
prove they suffer (economic) damages from private copies, otherwise Recital 35
of the Directive applies; there should not be compensation if the prejudice to
the rightsholder is minimal. Secondly, the Minister referred to technological
measures; if they are available practically and on an economically sound basis,
new levies might not be appropriate. Thirdly, the Minister underlined that the
measures in other Member States must be taken into account before creating a
new decree.
Like in most other Member States, the transposition of the Directive’s Article 6 provisions on the circumvention of technical measures such as Digital Rights Management (DRM) tools caused the greatest public and scientific controversy.
Since 1994, as a result of the Software Directive (91/250/EEC), it is forbidden to circumvent protection measures applied to computer programs. Article 32a of the Dutch Copyright Act makes it a criminal act to "facilitate the removal or overriding [...] of a technical device for the protection of a [computer program]".
The Dutch government was well aware of the large impact on society the very general Copyright Directive anti-circumvention provisions could have and specifically asked the copyright committee for advice.
In their second report of 1999, the committee recommended that the text of the Directive should be followed as closely as possible. “This topic is subject to maximum harmonization and Member States are not free to deviate from the Directive’s provisions.”[37]
The committee also recommended basing enforcement on civil law, on the standard of the unlawful act. Instead of immediately introducing a sanction under criminal law, the committee advised that experience was needed of the application of this provision. Besides, once the Council of Europe’s Convention on Cybercrime is adopted and ratified, the section of the Dutch Penal Code dealing with deliberate and unlawful modification of computer data (s. 350a) will be amended in such a way that the Copyright Directive’s Article 6 will fall within its scope. The Minister agreed, and repeated this line of reasoning in the first legal draft. Later, the Council of State again recommended criminal sanctions for any circumvention of technological measures, but the minister declined.
Liberals, Christian Democrats and members from the SGP (a small Christian party) put this question on the agenda during both parliamentary rounds of discussion, but the Minister stuck to references to the future ratification of the Cybercrime Convention. In the ten years since the introduction of s.32a criminal sanctions have hardly ever been used. For pragmatic reasons the Minister refused to introduce more criminal law before the need was absolutely apparent.
The transposition of Article 6.4 caused further difficulty for the committee. This creates an obligation for rightsholders to ensure that beneficiaries of an exemption or limitation are not denied those freedoms as a result of technological protection measures.
The committee suggested the Minister should wait for the introduction of an order in council (a decree). Extra measures should only be introduced, according to the committee, “in the absence of any voluntary agreements concluded by the rightsholders, including agreements between the rightsholders and other parties concerned”. Also, such a measure cannot forbid rightsholders from taking “adequate measures with respect to the number of reproductions” in the field of private copying. Last but not least, the committee recommended a periodic report to Parliament on the developments in this field.[38]
The Minister ignored the request for a periodic report, but followed the advice to be very cautious with extra provisions to protect consumers: “There will be no reason to take measures if rightsholders, if necessary after being urged to do so, voluntarily furnish the means to allow users to benefit from the limitations, for example as part of agreements with the users. The adoption of implementation legislation is thus an ultimate remedy. Under the Directive, implementation legislation is conditional: it is only adopted if rightsholders fail to take measures on a voluntary basis, or if no agreements are concluded between rightsholders and users (or their interest organisations).”[39]
Although the Minister believes that rightsholders and users will find a reasonable agreement, he did list some situations in which government might take action. “The justified expectations of consumers may play a role, as well as the need of market parties to be able to design, produce and market systems in which standardized access to – and effective use of – protected works is guaranteed.“ The three other possible solutions the minister described are an obligation to file an original in a central place so that a copy may be accessible at all times, an obligation to deposit a DRM key and finally, the possibility of granting subsidies to rightsholders.
In the first round of discussions with the Legal Affairs Committee of the Lower House in November 2002, MPs from the Green, Liberal and Social Democrat Parties expressed explicit concerns about the protection of consumers. Do consumers have to depend on the benevolence of rightsholders when buying works that are protected by technical measures?
MPs from both the Social Democrat and the Christian Democrat Party refer to the self-regulatory practice of putting logos on copy-protected music CD’s. Wouldn’t it be a good idea to make such notification obligatory?
The Minister disagreed. In May 2003 he explained why. He doesn’t want to introduce any further obligations for rightsholders; secondly, because of a peculiar view on “justified expectations of consumers”. If a consumer buys an audio CD that contains a technical protection that makes it impossible to play that audio CD on a computer’s CD-ROM player, the justified expectation of that consumer is not violated. According to the Minister, audio CDs are not primarily designed to be played on a computer.
The conclusion of the debate about consumer rights was that the Minister refused to take any pre-emptive measures to protect consumers. Industry and users should first try to sort it out amongst themselves, no matter how unfair the negotiation position of consumers dealing with multinationals. Further legislation is an “ultimate remedy” that will only be introduced when everything else fails.
Another matter of great concern is the future of cryptographic research. In October 2002 a coalition of 31 experts, scientists, lawyers and cryptographers sent an open letter to members of parliament, urging them to respect user rights when it comes to the circumvention provisions and to explicitly protect cryptographic research.[40]
The experts believe that publication of research on cryptographic protections of works and the discovery of weaknesses in those protections could lead to the prosecution of scientists. Therefore they asked for an explicit measure to protect cryptographic research.
They also argued that the Netherlands has a leading position in scientific research in cryptography and security. The importance of this kind of research increases with the growing dependence on the reliability and security of networks and systems in our information society. This kind of research is also very important for rightsholders, to determine if the technical measures they use have the desired effect. The proposed implementation threatens to make publication of this research unlawful, in spite of the fact that publication is an essential element of the scientific process.
A specific example, mentioned in the open letter, is the research of the Dutch cryptography expert Niels Ferguson into vulnerabilities of the HDCP encryption of video signals. He did not dare publish the results of his research in English, out of fear of being prosecuted in the United States under the Digital Millennium Copyright Act. Under the proposed transposition of the Copyright Directive he fears losing his freedom of expression in the Netherlands as well.
The Minister refused in spite of repeated questions from MPs, and argued that cryptographic research should not be aimed at breaking technical protections and therefore does not constitute an unlawful act. Specifically answering questions about Niels Ferguson, the Minister bluntly stated: “A scientist may well be expected to act carefully and prevent his research from enabling third parties to easily circumvent technical protection measures.”[41]
[1] Copyright Act 1912 (Auteurswet), english translation October 2000 by
Ministry of Justice, http://www.justitie.nl/Images/11_7837.doc; Neighbouring
Rights Acts 1993 (Wet op de Naburige Rechten), english translation October 2000
by Ministry of Justice, http://www.justitie.nl/Images/11_7838.doc
[2] Advies over auteursrecht, naburige rechten en de nieuwe media, Commissie Auteursrecht (copyright committee), Den Haag, 18 augustus 1998. The 8 members were: Prof. mr D.W.F. Verkade (chair), Prof. mr E.J. Dommering, Prof. mr F.W. Grosheide, Prof. mr P.B. Hugenholtz, Prof. mr K.J.M. Mortelmans, Mr E.J. Numann, Prof. mr J.H. Spoor en Mr J.A. Schaap.
[3] Elektronische handel en intellectuele eigendom, P.B. Hugenholtz, in Elektronische handel en intellectuele eigendom, WPNR, Themanummer E-commerce, nr. 6443, jrg. 132, 28 april 2001, p. 399-406, http://www.ivir.nl/publicaties/hugenholtz/wpnr.html
[4] TK (Lower House of Dutch Parliament) 1999-2000, 26538, nr. 3
[5] The 76 questions were divided in 8 chapters. Full responses were given by 18 collecting societies, organisations and companies. See http://www.justitie.nl/themas/wetgeving/dossiers/auteursrecht/forum/forum.asp?ComponentID=7429&SourcePageID=7845
[6] Advice on the implementation of the EC Directive copyright and related rights in the information society, copyright committee, July 2001, English translation by Ministry of Justice, http://www.justitie.nl/Images/11_7843.doc
[7] TK 2001-2002, 28482, nr. 1-2, English translation by Ministry of Justice, http://www.justitie.nl/Images/11_14575.doc
[8] Open brief namens 31 deskundigen op het gebied van technologie en
auteursrecht (Open letter), October 2002,
http://www.xs4all.nl/overxs4all/auteursrecht/auteurswet.html#brief; Nieuwe
auteurswet bedreigt innovatie culturele uitingen (Opinion article), Financieele
Dagblad, 5 Februari 2003, http://www.bof.nl/nieuws/030206.html
[9] TK 2002-2003, 28482, nr. 8, p. 17
[10] Advice on the implementation of the EC Directive copyright and
related rights in the information society, copyright committee, July 2001, p.
9. English translation by Ministry of Justice, http://www.justitie.nl/Images/11_7843.doc
[11] Council of State report (Advies Raad van State en Nader Rapport),
KS 28 842 B, p. 4.
[12] Ibid
[13] TK 2001-2002, 28 482, nr. 3 (Explanatory Memorandum), p. 20. English translation by Ministry of Justice,
http://www.justitie.nl/Images/11_14576.doc).
[14] TK 2001-2002, 28 482, nr. 4 (Report of the Lower House Legal
Affairs Committee), p. 6-8.
[15] TK 2001-2002, 28 482, nr 5 (Note following the report), pp 17-19.
[16] TK 2001-2002, 28 482, nr 8 (Note following the second report), pp
5-7.
[17] Supra note
168 p.11
[18] Supra note 168 p.25
[19] The example of the Mickey Mouse sweater was first mentioned by the Dutch copyright lawyer Dirk Visser. In his widely acclaimed thesis from 1997 he argued the term 'reproduction' lost all relevance in the digital era, was impossible to enforce and completely superfluous when it is much easier to control publication
[20] Supra note 163 Copyright Act 1912, section 16b paragraph 1
[21] Supra note 163 Copyright Act 1912, section 16c paragraph 1
[22] TK 2002-2003, 28482, nr. 4, p. 13
[23] Supra note 184
p.14
[24] TK 2002-2003, 28482, nr. 5, p. 31
[25] Supra note
186 p.32
[26] Supra note
186 p.32
[27] TK 2002-2003, 28482, nr. 7, p. 9
[28] TK 2002-2003, 28482, nr. 8, p. 12-13
[29] EICTA, http://www.eicta.org/levies/issues/levies.html, this website is an initiative of the European Information, Communications and Consumer Electronics Technology Industry Association (EICTA) with strong arguments against levies on digital equipment such as PCs, printers, mobile phones, CD burners and MP3 players.
[30] Ontwerp wetsvoostel Wet uitvoering richtlijn auteurswet en naburige rechten in de informatiemaatschappij, 15 October 2001, p. 43
[31] Supra note
192 p.44
[32] Supra note
192 p.57
[33] Supra note
201 p.45
[34] Supra note
184 p.13
[35] Supra note
186 p.30
[36] Supra note
189 p.9
[37] Supra note 168 p.12
[38] Supra note
168 p.27
[39] TK 2001-2002, 28482, nr. 3, p. 24 in English translation
by Ministry of Justice, http://www.justitie.nl/Images/11_14576.doc
[40] Supra note
170
[41] Supra note
171 p.18